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ELECTRONIC CODE OF FEDERAL REGULATIONS
e-CFR Data is current as of April 23, 2014
Title 50: Wildlife and Fisheries
PART 18—MARINE MAMMALS
Contents
Subpart A—Introduction
§18.1
§18.2
§18.3
§18.4

Purpose of regulations.
Scope of regulations.
Definitions.
Information collection requirements.

Subpart B—Prohibitions
§18.11
§18.12
§18.13
§18.14

Prohibited taking.
Prohibited importation.
Prohibited uses, possession, transportation, and sales.
Marine mammals taken before the Act.

Subpart C—General Exceptions
§18.21
§18.22
§18.23
§18.24
§18.25
§18.26
§18.27

Actions permitted by international treaty, convention, or agreement.
Taking by Federal, State or local government officials.
Native exemptions.
Taking incidental to commercial fishing operations.
Exempted marine mammals or marine mammal products.
Collection of certain dead marine mammal parts.
Regulations governing small takes of marine mammals incidental to specified activities.

Subpart D—Special Exceptions
§18.30
§18.31
§18.32
§18.33
§18.34

Polar bear sport-hunted trophy import permits.
Scientific research permits and public display permits.
Waiver of the moratorium.
Procedures for issuance of permits and modification, suspension, or revocation thereof.
Guidelines for use in safely deterring polar bears.

Subpart E—Depleted Species or Stocks [Reserved]
Subpart F—Transfer of Management Authority to States
Subpart G—Notice and Hearing on Section 103 Regulations
§18.70 Basis and purpose.
§18.71 Definitions.
§18.72 Scope of regulations.
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§18.73 Burden of proof.
§18.74 Notice of hearing.
§18.75 Notification by interested persons.
§18.76 Presiding officer.
§18.77 Direct testimony submitted as written documents.
§18.78 Mailing address.
§18.79 Inspection and copying of documents.
§18.80 Ex parte communications.
§18.81 Prehearing conference.
§18.82 Prehearing order.
§18.83 Determination to cancel the hearing.
§18.84 Rebuttal testimony and new issues of fact in prehearing order.
§18.85 Waiver of right to participate.
§18.86 Conduct of the hearing.
§18.87 Direct testimony.
§18.88 Cross-examination.
§18.89 Oral and written arguments.
§18.90 Recommended decision, certification of the transcript and submission of comments on the
recommended decision.
§18.91 Director's decision.
Subpart H—Waiver of Moratorium on Taking and Importation of Individual Marine Mammal
Species
§18.92 Purpose of regulations.
§18.93 Scope of regulations.
§18.94 Pacific walrus (Alaska).
Subpart I—Nonlethal Taking of Pacific Walruses and Polar Bears Incidental to Oil and Gas
Exploration Activities in the Chukchi Sea and Adjacent Coast of Alaska
§18.111
§18.112
§18.113
§18.114
§18.115
§18.116
§18.117
§18.118
§18.119

What specified activities does this subpart cover?
In what specified geographic region does this subpart apply?
When is this subpart effective?
How do I obtain a Letter of Authorization?
What criteria does the Service use to evaluate Letter of Authorization requests?
What does a Letter of Authorization allow?
What activities are prohibited?
What are the mitigation, monitoring, and reporting requirements?
What are the information collection requirements?

Subpart J—Nonlethal Taking of Marine Mammals Incidental to Oil and Gas Exploration,
Development, and Production Activities in the Beaufort Sea and Adjacent Northern Coast of
Alaska
§18.121
§18.122
§18.123
§18.124
§18.125
§18.126
§18.127
§18.128
§18.129

What specified activities does this subpart cover?
In what specified geographic region does this subpart apply?
When is this subpart effective?
How do I obtain a Letter of Authorization?
What criteria does the Service use to evaluate Letter of Authorization requests?
What does a Letter of Authorization allow?
What activities are prohibited?
What are the mitigation, monitoring, and reporting requirements?
What are the information collection requirements?

AUTHORITY : 16 U.S.C. 1361 et seq.
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SOURCE: 39 FR 7262, Feb. 25, 1974, unless otherwise noted.

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Subpart A—Introduction
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§18.1 Purpose of regulations.
The regulations contained in this part implement the Marine Mammal Protection Act of 1972 (16
U.S.C. 1361-1407), which among other things, restricts the taking, possession, transportation, selling,
offering for sale, and importing of marine mammals.
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§18.2 Scope of regulations.
(a) This part 18 applies solely to marine mammals and marine mammal products as defined in
§18.3. For regulations under the Act with respect to cetacea (whales and porpoises), pinnipedia, other
than walrus (seals and sea lions), see 50 CFR part 216.
(b) The provisions in this part are in addition to, and are not in lieu of, other regulations of this
subchapter B which may require a permit or prescribe additional restrictions or conditions for the
importation, exportation, and interstate transportation of wildlife. (See also part 13 of this subchapter.)
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§18.3 Definitions.
In addition to definitions contained in section 3 of the Act and in part 10 of this subchapter, and
unless the context requires otherwise, in this part 18:
Act means the Marine Mammal Protection Act of 1972, 86 Stat. 1027, 16 U.S.C. 1361-1407; Pub.
L. 92-522.
Alaskan Native means a person defined in the Alaska Native Claims Settlement Act (43 U.S.C.
section 1603(b) (85 Stat. 588)) as a citizen of the United States who is of one-fourth degree or more
Alaska Indian (including Tsimshian Indians enrolled or not enrolled in the Metlaktla Indian Community),
Eskimo, or Aleut blood, or combination thereof. The term includes any Native, as so defined, either or
both of whose adoptive parents are not Natives. It also includes, in the absence of proof of a minimum
blood quantum, any citizen of the United States who is regarded as an Alaska Native by the Native
village or town of which he claims to be a member and whose father or mother is (or, if deceased,
was) regarded as Native by any Native village or Native town. Any citizen enrolled by the Secretary
pursuant to section 5 of the Alaska Native Claims Settlement Act shall be conclusively presumed to be
an Alaskan Native for purposes of this part.
Authentic native articles of handicrafts and clothing means items made by an Indian, Aleut, or
Eskimo that (a) are composed wholly or in some significant respect of natural materials and (b) are
significantly altered from their natural form and are produced, decorated, or fashioned in the exercise of
traditional native handicrafts without the use of pantographs, multiple carvers, or similar mass-copying
devices. Improved methods of production utilizing modern implements such as sewing machines or
modern techniques at a tannery registered pursuant to §18.23(c) may be used so long as no largescale mass-production industry results. Traditional native handicrafts include, but are not limited to,
weaving, carving, stitching, sewing, lacing, beading, drawing, and painting. The formation of traditional
native groups, such as cooperatives, is permitted so long as no large-scale mass production results.
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Commercial fishing operation means the lawful harvesting of fish from the marine environment for
profit as part of an on-going business enterprise. Such term shall not include sport fishing activities
whether or not carried out by charter boat or otherwise, and whether or not the fish so caught are
subsequently sold.
Endangered species means a species of marine mammal listed as “endangered” pursuant to the
Endangered Species Act of 1973, 87 Stat. 884, Pub. L. 93-205 (see part 17 of this subchapter).
Incidental catch means the taking of a marine mammal (a) because it is directly interfering with
commercial fishing operations, or (b) as a consequence of the steps used to secure the fish in
connection with commercial fishing operations: Provided, however, That a marine mammal so taken
must immediately be returned to the sea with a minimum of injury; and Provided, further, That the
taking of a marine mammal which otherwise meets the requirements of this definition shall not be
considered as incidental catch of that mammal if it is used subsequently to assist in commercial
fishing operations.
Marine mammal means any specimen of the following species, whether alive or dead, and any
part thereof, including but not limited to, any raw, dressed, or dyed fur or skin:
Scientific name
Ursus maritimus
Enhydra lutris
Odobenus rosmarus
Dugong dugon
Trichechus manatus
Trichechus inunguis
Trichechus senegalensis
Lutra felina

Common name
Polar bear
Sea otter
Walrus
Dugong
West Indian manatee
Amazonian manatee
West African manatee
Marine otter

Date listed
Dec. 21, 1972.
Do.
Do.
Do.
Do.
Do.
Do.
Mar. 29, 1978.

Note: Common names given may be at variance with local usage.
Native village or town means any community, association, tribe, band, clan, or group.
Pregnant means pregnant near term.
Subsistence means the use by Alaskan Natives of marine mammals taken by Alaskan Natives for
food, clothing, shelter, heating, transportation, and other uses necessary to maintain the life of the taker
or for those who depend upon the taker to provide them with such subsistence.
Take means to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, collect, or
kill any marine mammal, including, without limitation, any of the following: The collection of dead
animals or parts thereof; the restraint or detention of a marine mammal, no matter how temporary;
tagging a marine mammal; or the negligent or intentional operation of an aircraft or vessel, or the doing
of any other negligent or intentional act which results in the disturbing or molesting of a marine
mammal.
Threatened species means a species of marine mammal listed as “threatened” pursuant to the
Endangered Species Act of 1973, 87 Stat. 884, Pub. L. 93-205.
Wasteful manner means any taking or method of taking which is likely to result in the killing or
injuring of marine mammals beyond those needed for subsistence purposes or for the making of
authentic native articles of handicrafts and clothing or which results in the waste of a substantial portion
of the marine mammal and includes without limitation the employment of a method of taking which is
not likely to assure the capture or killing of a marine mammal, or which is not immediately followed by a
reasonable effort to retrieve the marine mammal.
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[39 FR 7262, Feb. 25, 1974, as amended at 43 FR 13066, Mar. 29, 1978; 55 FR 14978, Apr. 20, 1990; 70 FR
48323, Aug. 17, 2005]

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§18.4 Information collection requirements.
(a) The Office of Management and Budget under 44 U.S.C. 3501 et seq. has approved the
information collection requirements contained in Subpart D and assigned clearance number 10180022. The Service is collecting this information to review and evaluate permit applications and make
decisions according to criteria established in various Federal wildlife conservation statutes and
regulations, on the issuance or denial of permits. The applicant must respond to obtain or retain a
permit.
(b) The Service estimated the public reporting burden for this collection of information to vary from
15 minutes to 4 hours per response, with an average of 1.028 hours per response, including the time
for reviewing instructions, searching existing data sources, gathering and maintaining the data needed,
and completing and reviewing the collection of information. Send comments regarding this burden or
any other aspect of this collection of information, including suggestions for reducing the burden, to the
Service Information Collection Clearance Office, Fish and Wildlife, Service Office of Management and
Budget, Mail Stop 224, Arlington Square, U.S. Department of the Interior, 1849 C Street, NW.,
Washington, DC 20240 and the Office of Management and Budget, Paperwork Reduction Project
(1018-0022), Washington, DC 20503.
[62 FR 7329, Feb. 18, 1997]

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Subpart B—Prohibitions
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§18.11 Prohibited taking.
Except as otherwise provided in subpart C, D, or H of this part 18, or part 403, it is unlawful for:
(a) Any person, vessel, or conveyance subject to the jurisdiction of the United States to take any
marine mammal on the high seas, or
(b) Any person, vessel, or conveyance to take any marine mammal in waters or on lands under
the jurisdiction of the United States.
[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]

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§18.12 Prohibited importation.
(a) Except as otherwise provided in subparts C and D of this part 18, it is unlawful for any person
to import any marine mammal or marine mammal product into the United States.
(b) Regardless of whether an importation is otherwise authorized pursuant to subparts C and D of
this part 18, it is unlawful for any person to import into the United States any:
(1) Marine mammal: (i) Taken in violation of the Act, or
(ii) Taken in another country in violation of the laws of that country;
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(2) Any marine mammal product if: (i) The importation into the United States of the marine
mammal from which such product is made would be unlawful under paragraph (b)(1) of this section, or
(ii) The sale in commerce of such product in the country of origin of the product is illegal.
(c) Except in accordance with an exception referred to in subpart C and §§18.31 and 18.32 of this
part, it is unlawful to import into the United States any:
(1) Marine mammal which was pregnant at the time of taking;
(2) Marine mammal which was nursing at the time of taking, or less than 8 months old, whichever
occurs later;
(3) Specimen of an endangered or threatened species of marine mammals;
(4) Specimen taken from a depleted species or stock of marine mammals; or
(5) Marine mammal taken in an inhumane manner.
(d) It is unlawful to import into the United States any fish, whether fresh, frozen, or otherwise
prepared, if such fish was caught in a manner proscribed by the Secretary of Commerce for persons
subject to the jurisdiction of the United States, whether or not any marine mammals were in fact taken
incident to the catching of the fish.
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§18.13 Prohibited uses, possession, transportation, and sales.
Except as otherwise provided in the Act or these regulations, it is unlawful for:
(a) Any person to use any port, harbor, or other place under the jurisdiction of the United States for
any purpose in any way connected with a prohibited taking or any unlawful importation of any marine
mammal or marine mammal products;
(b) Any person to possess any marine mammal, or product therefrom, taken in violation of the Act
or these regulations;
(c) Any person to transport, purchase, sell, or offer to purchase or sell any marine mammal or
marine mammal product; or
(d) Any person subject to the jurisdiction of the United States to use in a commercial fishery, any
means or method of fishing in contravention of regulations and limitations issued by the Secretary of
Commerce for that fishery to achieve the purposes of this Act.
[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]

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§18.14 Marine mammals taken before the Act.
(a) Section 102(e) of the Act provides in effect that the Act shall not apply to any marine mammal
taken prior to December 21, 1972, or to any marine mammal product consisting of, or composed in
whole or in part of, any marine mammal taken before such date. Such status may be established by
submitting to the Director prior to, or at the time of importation, an affidavit containing the following:
(1) The Affiant's name and address;
(2) Identification of the Affiant;
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(3) A description of the marine mammals or marine mammal products which the Affiant desires to
import;
(4) A statement by the Affiant that to the best of his knowledge and belief, the marine mammals
involved in the application were taken prior to December 21, 1972;
(5) A statement by the Affiant in the following language:
The foregoing is principally based on the attached exhibits which, to the best of my knowledge and belief, are
complete, true and correct. I understand that this affidavit is being submitted for the purpose of inducing the Federal
Government to permit the importation of _____ under the Marine Mammal Protection Act of 1972 (16 U.S.C. 13611407) and regulations promulgated thereunder, and that any false statements may subject me to the criminal
penalties of 18 U.S.C. 1001.

(b) Either one of two exhibits shall be attached to such affidavit, and will contain either:
(1) Records or other available evidence showing that the product consists of or is composed in
whole or in part of marine mammals taken prior to December 21, 1972. Such records or other
evidentiary material must include information on how, when, where, and by whom the animals were
taken, what processing has taken place since taking, and the date and location of such processing; or
(2) A statement from a government agency of the country of origin exercising jurisdiction over
marine mammals that any and all such mammals from which the products sought to be imported were
derived were taken prior to December 21, 1972.
(c) Service agents, or Customs officers, may refuse to clear marine mammals or marine mammal
products for importation into the United States, pursuant to §14.53 of this subchapter, until the importer
can demonstrate, by production of the affidavit referred in above or otherwise, that section 102(e) of the
Act applies to all affected items.
(d) This section has no application to any marine mammal or marine mammal product intended to
be imported pursuant to §18.21, §18.31 or §18.32 of this part.
[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]

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Subpart C—General Exceptions
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§18.21 Actions permitted by international treaty, convention, or agreement.
The Act and these regulations shall not apply to the extent that they are inconsistent with the
provisions of any international treaty, convention or agreement, or any statute implementing the same,
relating to the taking or importation of marine mammals or marine mammal products, which was
existent and in force prior to December 21, 1972, and to which the United States was a party.
Specifically, the regulations in subpart B of this part and the provisions of the Act shall not apply to
activities carried out pursuant to the Interim Convention on the Conservation of North Pacific Fur Seals
signed in Washington on February 9, 1957, and the Fur Seal Act of 1966, 16 U.S.C. 1151-1187, as, in
each case, from time to time amended.
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§18.22 Taking by Federal, State or local government officials.
(a) A Federal, State or local government official or employee may take a marine mammal in the
course of his duties as an official or employee and no permit shall be required, if such taking:
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(1) Is accomplished in a humane manner;
(2) Is for the protection or welfare of such mammal or from the protection of the public health or
welfare; and
(3) Includes steps designed to insure return of such mammal, if not killed in the course of such
taking, to its natural habitat. In addition, any such official or employee may, incidental to such taking,
possess and transport, but not sell or offer for sale, such mammal and use any port, harbor or other
place under the jurisdiction of the United States. All steps reasonably practicable under the
circumstances shall be taken by any such employee or official to prevent injury or death to the marine
mammal as the result of such taking.
(b) Each taking permitted under this section should be included in a written report, to be submitted
to the Director every six months, beginning December 31, 1973. Unless otherwise permitted by the
Director, the report shall contain a description of:
(1) The animal involved;
(2) The circumstances requiring the taking;
(3) The method of taking;
(4) The name and official position of the State official or employee involved;
(5) The disposition of the animal, including in cases where the animal has been retained in
captivity, a description of the place and means of confinement and the measures taken for its
maintenance and care; and
(6) Such other information as the Director may require.
The reports shall be mailed to the Director, U.S. Fish and Wildlife Service, U.S. Department of the
Interior, Washington, DC 20240.
[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]

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§18.23 Native exemptions.
(a) Taking. Except as otherwise provided in part 403 of this title, any Indian, Aleut, or Eskimo who
resides in Alaska and who dwells on the coast of the North Pacific Ocean or the Arctic Ocean may take
any marine mammal without a permit, subject to the restrictions contained in this section, if such taking
is:
(1) For subsistence purposes, or
(2) For purposes of creating and selling authentic native articles of handicraft and clothing, and
(3) In each case, not accomplished in a wasteful manner.
(b) Restrictions. (1) “Except for a transfer to a duly authorized representative of the Regional
Director of the U.S. Fish and Wildlife Service for scientific research purposes, no marine mammal
taken for subsistence may be sold or otherwise transferred to any person other than an Alaskan Native
or delivered, carried, transported, or shipped in interstate or foreign commerce, unless:
(i) It is being sent by an Alaskan Native directly or through a registered agent to a tannery
registered under paragraph (c) of this section for the purpose of processing, and will be returned
directly or through a registered agent to the Alaskan Native; or
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(ii) It is sold or transferred to a registered agent in Alaska for resale or transfer to an Alaskan
Native; or
(iii) It is an edible portion and it is sold in an Alaskan Native village or town.
(2) “Except for a transfer to a duly authorized representative of the Regional Director of the U.S.
Fish and Wildlife Service for scientific research purposes, no marine mammal taken for purposes of
creating and selling authentic Native articles of handicraft and clothing may be sold or otherwise
transferred to any person other than an Indian, Aleut or Eskimo, or delivered, carried, transported or
shipped in interstate or foreign commerce, unless:
(i) It is being sent by an Indian, Aleut or Eskimo directly or through a registered agent to a tannery
registered under paragraph (c) of this section for the purpose of processing, and will be returned
directly or through a registered agent to the Indian, Aleut or Eskimo; or
(ii) It is sold or transferred to a registered agent for resale or transfer to an Indian, Aleut, or Eskimo;
or
(iii) It has been first transformed into an authentic Native article of handicraft or clothing; or
(iv) It is an edible portion and it is sold (A) in an Alaskan Native village or town or (B) to an Alaskan
Native for his consumption.
(c) The restriction in paragraph (b) shall not apply to parts or products of the Pacific walrus
(Odobenis rosmarus) to the extent that the waiver of the moratorium and the approved State/Federal
regulations relating to the taking and importation of walrus permits the delivery, sale, transportation or
shipment of parts or products of the Pacific walrus in interstate or foreign commerce.
(d) Any tannery, or person who wishes to act as an agent, within the jurisdiction of the United
States may apply to the Director for registration as a tannery or an agent which may possess and
process marine mammal products for Indians, Aleuts, or Eskimos. The application shall include the
following information:
(1) The name and address of the applicant;
(2) A description of the applicant's procedures for receiving, storing, processing, and shipping
materials;
(3) A proposal for a system of bookkeeping and/or inventory segregation by which the applicant
could maintain accurate records of marine mammals received from Indians, Aleuts, or Eskimos,
pursuant to this section;
(4) Such other information as the Director may request;
(5) A certification in the following language:
I hereby certify that the foregoing information is complete, true, and correct to the best of my knowledge and
belief. I understand that this information is submitted for the purpose of obtaining the benefit of an exception under
the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361-1407) and regulations promulgated thereunder, and
that any false statement may subject me to the criminal penalties of 18 U.S.C. 1001.

(6) The signature of the applicant.
The sufficiency of the application shall be determined by the Director, and in that connection, he may
waive any requirement for information, or require any elaboration or further information deemed
necessary. The registration of a tannery or other agent shall be subject to the conditions as the Director
prescribes, which may include, but are not limited to provisions regarding records, inventory
segregation, reports, and inspection. The Director may charge a reasonable fee for such applications,
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including an appropriate apportionment of overhead and administrative expenses of the Department of
Interior.
(e) Notwithstanding the preceding provisions of this section, whenever, under the Act, the
Secretary determines any species or stock of marine mammals to be depleted, he may prescribe
regulations pursuant to section 103 of the Act upon the taking of such marine mammals by any Indian,
Aleut, or Eskimo and, after promulgation of such regulations, all takings of such marine mammals by
such person shall conform to such regulations.
(f) Marking, tagging, and reporting. (1) In addition to definitions contained in the Act, 50 CFR 18.3,
and 50 CFR 18.27, in this paragraph (f):
(i) The term “marking and tagging” of marine mammals as specified in section 109(i) of the Act
refers to the actual physical attachment of an approved band or other such marking device or
technique to the raw or unhandicrafted (including unmarked tanned skins) skin and skull of polar bears,
the tusks of walruses, and the skin and skull of sea otters; and
(ii) The term “reporting” means the collection by Service personnel or the Service's authorized
local representatives of biological data, harvest data, and other information regarding the effect of taking
of marine mammals on populations, the collection of which the Service determines to be necessary for
management purposes. Reporting will be done on forms provided by the Service upon presentation for
marking, tagging, and reporting purposes of the marine mammal(s) or specified raw or unhandicrafted
parts thereof.
(2) Notwithstanding the preceding provisions of this section, but subject to the provisions and
conditions contained in this paragraph, no polar bear, walrus, or sea otter, or any parts thereof, taken or
collected by an Alaskan Native for subsistence purposes or for purposes of creating and selling
authentic Native articles of handicrafts and clothing may be possessed, transported within, or exported
from Alaska unless the animal(s), or specified parts thereof, have been reported to, and properly
marked and tagged by, Service personnel or the Service's authorized local representative; except:
(i) An Alaskan Native that harvested or participated in the harvest of a polar bear, sea otter, or
walrus and who possesses the animal, or any parts thereof, may possess the unmarked, untagged,
and unreported animal(s), or parts thereof, for a period of time not to exceed 30 days from the time of
taking for the purpose of transporting the specified parts to Service personnel or the Service's local
authorized representative for marking, tagging, and reporting;
(ii) Alaskan Natives and registered agents/tanneries may possess the specified unmarked or
untagged raw, unhandicrafted, or tanned parts thereof for a period of time not to exceed 180 days from
the effective date of this rulemaking for the purpose of transporting to Service personnel or the
Service's local authorized representative for marking and tagging if the specified parts thereof were
taken or possessed between December 21, 1972, and the effective date of this regulation. There is no
reporting requirement for marine mammals, or specified parts thereof, covered by this paragraph.
(3) Those unmarked, untagged, and unreported specified parts of polar bear, walrus, and sea
otter, that must be presented to Service personnel or an authorized Service representative for marking,
tagging, and reporting are as follows:
(i) Polar bear—skin and skull.
(ii) Walrus—tusks.
(iii) Sea otter—skin and skull.
(4) The locations where Service personnel or the Service's authorized local representative will be
available for marking, tagging, and reporting purposes will be announced annually by the Alaska
Regional Director. Local persons authorized to act as representatives for marking, tagging, and
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reporting purposes in the absence of Service personnel will also be announced annually by the Alaska
Regional Director.
(5) Marks and tags will be attached or applied to the skins, skulls, and tusks of the marine
mammal(s) in such a manner as to maximize their longevity and minimize their adverse effects to the
appearance of the specified parts that might result due to hindering the tanning or handicrafting of
skins, or the handicrafting of tusks or skulls. If the tag or mark comes off of the specified part the
person in possession of the part shall have 30 days to present the part and broken tag or other marking
device to the Service or the Service's authorized local representative for remarking or retagging
purposes.
(6) Marks and tags for skins, skulls, and tusks will be provided by the Service. They will be
numbered for accountability and of such design, construction, and material so as to maximize their
durability and longevity on the specified parts.
(7) Data collected pursuant to this paragraph will be reported on forms provided by the Service and
maintained in the Service's Regional Office, Anchorage, Alaska. The Service will summarize the data
annually and make it publicly available. The data will also be included in the Service's annual report to
Congress as set forth in section 103(f) of the Act.
(8) All items of research (e.g., radio collars, satellite transmitters, tags, etc.) that were attached to
animals taken by Alaskan Natives must be returned to Service personnel or an authorized Service
representative at the time the animal, or specified unhandicrafted parts thereof, are presented for
marking, tagging, and reporting. No penalty will be imposed under the Act for a violation of this
paragraph. However, penalties may be sought by the Service under other applicable Federal laws
governing the possession and use of Federal property.
(9) Pursuant to this paragraph (f), the following specific conditions and provisions apply:
(i) Marking, tagging, and reporting of polar bears or specified parts thereof.
(A) The skin and skull of an animal must accompany each other when presented for marking,
tagging, and reporting except that the skin and skull of an animal need not be presented together for
marking and tagging purposes if taken between December 21, 1972, and the effective date of this
regulation.
(B) Except as provided in paragraph (f)(2)(ii) of this section, the following information must be
reported by Alaskan Natives when presenting polar bears, or specified parts thereof, for marking and
tagging: sex of animal, date of kill, and location of kill.
(C) Both the skin and the skull will be marked and tagged and a rudimentary pre-molar tooth may
be removed from the skull and retained by the Service. The skin must have the sex identifiers, such as
vaginal orifice, teats, or penal sheath or baculum, either attached to, or accompanying the skin.
(D) The skull must be skinned out and the skin may be frozen or unfrozen when presented for
marking, tagging, and reporting. If the skin is frozen, the sex identifiers, such as vaginal orifice, teats,
penal sheath or baculum, must be visible.
(E) Marks and tags must remain affixed to the skin through the tanning process and until the skin
has been severed into parts for crafting into handicrafts or for as long as is practical during the
handicrafting process.
(ii) Marking, tagging, and reporting of walrus or specified parts thereof.
(A) The paired tusks of the animal(s) must, to the maximum extent practical, accompany each
other when presented for marking, tagging, and reporting purposes, except that paired tusks need not
be presented together for marking and tagging purposes if taken between December 21, 1972, and the
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effective date of this regulation.
(B) Except as provided in paragraph (f)(2)(ii) of this section, the following information must be
reported by Alaskan Natives when presenting walrus, or specified parts thereof, for marking and
tagging: date of take, sex of animal, whether live-killed, floating-dead, or beach-found, and location of
the take or location of animal if found floating and dead or beach-found.
(C) Marks and/or tags must remain affixed to the tusks until they have been crafted into a
handicraft or for as long as is practical during the handicrafting process.
(iii) Marking, tagging, and reporting of sea otter or specified parts thereof.
(A) The skin and skull of an animal must accompany each other when presented for marking,
tagging, and reporting, except that the skin and skull of an animal need not be presented together if
taken between December 21, 1972, and the effective date of this regulation.
(B) Except as provided in paragraph (f)(2)(ii) of this section, the following information must be
reported by Alaskan Natives when presenting sea otters, or specified parts thereof, for marking and
tagging: date of kill, sex of animal, and location of kill.
(C) Both the skin and skull will be marked and tagged and a rudimentary pre-molar tooth may be
removed from the skull and retained by the Service. The skin must have the sex identifiers, such as
vaginal orifice, teats, or penal sheath or baculum, either attached to, or accompanying the skin.
(D) The skull must be skinned out and the skin may be frozen or unfrozen when presented for
marking, tagging, and reporting. If the skin is frozen, the sex identifiers, such as vaginal orifice, teats, or
penal sheath or baculum, must be visible.
(E) Marks and tags must remain affixed to the skin through the tanning process and until the skin
has been severed into parts for crafting into handicrafts or for as long as is practical during the
handicrafting process.
(10) No person may falsify any information required to be set forth on the reporting form when the
marine mammal(s), or specified parts thereof, are presented as required by these regulations.
(11) Possession by any person of marine mammal(s), or any parts thereof, in violation of the
provisions and conditions of this §18.23(f) is subject to punishment under the penalties provided for in
section 105(a)(1) of the Act.
(12) The information collection requirements contained in this §18.23(f) have been approved by the
Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number
1018-0066. The information is mandatory in order to have the marine mammal parts “marked and
tagged,” and thereby made eligible for continued lawful possession. Non-response may result in the
Service determining the wildlife to be illegally possessed and subject the individual to penalties under
this title.
[39 FR 7262, Feb. 25, 1974, as amended at 40 FR 59444, Dec. 24, 1975; 45 FR 54057, Aug. 14, 1980; 51 FR
17981, May 16, 1986; 53 FR 24283, June 28, 1988]

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§18.24 Taking incidental to commercial fishing operations.
Persons may take marine mammals incidental to commercial fishing operations until October 21,
1974: Provided, That such taking is by means of equipment and techniques prescribed in regulations
issued by the Secretary of Commerce. However, any marine mammal taken as an incidental catch
may not be retained. It shall be the immediate goal that the incidental kill or incidental serious injury of
marine mammals permitted in the course of commercial fishing operations be reduced to insignificant
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levels approaching a zero mortality and serious injury rate.
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§18.25 Exempted marine mammals or marine mammal products.
(a) The provisions of the Act and these regulations shall not apply:
(1) To any marine mammal taken before December 21, 1972, or
(2) To any marine mammal product if the marine mammal portion of such product consists solely
of a marine mammal taken before such date.
(b) The prohibitions contained in §18.12(c) (3) and (4) shall not apply to marine mammals or
marine mammal products imported into the United States before the date on which notice is published
in the FEDERAL REGISTER of the proposed rulemaking with respect to the designation of the species of
stock concerned as depleted or endangered:
(c) Section 18.12(b) shall not apply to articles imported into the United States before the effective
date of the foreign law making the taking or sale, as the case may be, of such marine mammals or
marine mammal products unlawful.
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§18.26 Collection of certain dead marine mammal parts.
(a) Any bones, teeth or ivory of any dead marine mammal may be collected from a beach or from
land within 1⁄ 4 of a mile of the ocean. The term “ocean” includes bays and estuaries.
(b) Marine mammal parts so collected may be retained if registered within 30 days with an agent of
the National Marine Fisheries Service, or an agent of the U.S. Fish and Wildlife Service.
(c) Registration shall include (1) the name of the owner, (2) a description of the article to be
registered and (3) the date and location of collection.
(d) Title to any marine mammal parts collected under this section is not transferable, unless
consented to in writing by the agent referred to in paragraph (b) of this section.
[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]

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§18.27 Regulations governing small takes of marine mammals incidental to specified
activities.
(a) Purpose of regulations. The regulations in this section implement Section 101(a)(5) of the
Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1371(a)(5), which provides a
mechanism for allowing, upon request, during periods of not more than five consecutive years each,
the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who
engage in a specified activity (other than commercial fishing) within a specified geographical region.
(b) Scope of regulations. The taking of small numbers of marine mammals under section 101(a)
(5) of the Marine Mammal Protection Act may be allowed only if the Director of the Fish and Wildlife
Service (1) finds, based on the best scientific evidence available, that the total taking during the
specified time period will have a negligible impact on the species or stock and will not have an
unmitigable adverse impact on the availability of the species or stock for subsistence uses; (2)
prescribes regulations setting forth permissible methods of taking and other means of effecting the
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least practicable adverse impact on the species and its habitat and on the availability of the species for
subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar
significance; and (3) prescribes regulations pertaining to the monitoring and reporting of such taking.
NOTE: The information collection requirement contained in this §18.27 has been approved by the Office of
Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance No. 1018-0070. The information is
being collected to describe the activity proposed and estimate the cumulative impacts of potential takings by all
persons conducting the activity. The information will be used to evaluate the application and determine whether to
issue Specific Regulations and, subsequently, Letters of Authorization. Response is required to obtain a benefit.

The public reporting burden from this requirement is estimated to vary from 2 to 200 hours per
response with an average of 10 hours per response including time for reviewing instructions, gathering
and maintaining data, and completing and reviewing applications for specific regulations and Letters of
Authorization. Direct comments regarding the burden estimate or any other aspect of this requirement
to the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, Department of the
Interior, Mail Stop—220 ARLSQ, 18th and C Streets NW., Washington, DC 20240, and the Office of
Management and Budget, Paperwork Reduction Project (Clearance No. 1018-0070), Washington, DC
20503.
(c) Definitions. In addition to definitions contained in the Act and in 50 CFR 18.3 and unless the
context otherwise requires, in this section:
Citizens of the United States and U.S. citizens mean individual U.S. citizens or any corporation or
similar entity if it is organized under the laws of the United States or any governmental unit defined in 16
U.S.C. 1362(13). U.S. Federal, State and local government agencies shall also constitute citizens of
the United States for purposes of this section.
Incidental, but not intentional, taking means takings which are infrequent, unavoidable, or
accidental. It does not mean that the taking must be unexpected. (Complete definition of take is
contained in 50 CFR 18.3.)
Negligible impact is an impact resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the species or stock through effects on
annual rates of recruitment or survival.
Small numbers means a portion of a marine mammal species or stock whose taking would have a
negligible impact on that species or stock.
Specified activity means any activity, other than commercial fishing, which takes place in a
specified geographical region and potentially involves the taking of small numbers of marine mammals.
The specified activity and specified geographical region should be identified so that the anticipated
effects on marine mammals will be substantially similar.
Specified geographical region means an area within which a specified activity is conducted and
which has similar biogeographic characteristics.
Unmitigable adverse impact means an impact resulting from the specified activity (1) that is likely
to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs
by (i) causing the marine mammals to abandon or avoid hunting areas, (ii) directly displacing
subsistence users, or (iii) placing physical barriers between the marine mammals and the subsistence
hunters; and (2) that cannot be sufficiently mitigated by other measures to increase the availability of
marine mammals to allow subsistence needs to be met.
(d) Submission of requests. (1) In order for the Fish and Wildlife Service to consider allowing the
taking by U.S citizens of small numbers of marine mammals incidental to a specified activity, a written
request must be submitted to the Director, U.S. Fish and Wildlife Service, Department of the Interior,
Washington, DC 20240. Requests shall include the following information on the activity as a whole,
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which includes, but is not limited to, an assessment of total impacts by all persons conducting the
activity:
(i) A description of the specific activity or class of activities that can be expected to result in
incidental taking of marine mammals;
(ii) The dates and duration of such activity and the specific geographical region where it will occur;
(iii) Based upon the best available scientific information;
(A) An estimate of the species and numbers of marine mammals likely to be taken by age, sex,
and reproductive conditions, and the type of taking (e.g., disturbance by sound, injury or death resulting
from collision, etc.) and the number of times such taking is likely to occur;
(B) A description of the status, distribution, and seasonal distribution (when applicable) of the
affected species or stocks likely to be affected by such activities;
(C) The anticipated impact of the activity upon the species or stocks;
(D) The anticipated impact of the activity on the availability of the species or stocks for subsistence
uses;
(iv) The anticipated impact of the activity upon the habitat of the marine mammal populations and
the likelihood of restoration of the affected habitat;
(v) The anticipated impact of the loss or modification of the habitat on the marine mammal
population involved;
(vi) The availability and feasibility (economic and technological) of equipment, methods, and
manner of conducting such activity or other means of effecting the least practicable adverse impact
upon the affected species or stocks, their habitat, and, where relevant, on their availability for
subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar
significance. (The applicant and those conducting the specified activity and the affected subsistence
users are encouraged to develop mutually agreeable mitigating measures that will meet the needs of
subsistence users.);
(vii) Suggested means of accomplishing the necessary monitoring and reporting which will result
in increased knowledge of the species through an analysis of the level of taking or impacts and
suggested means of minimizing burdens by coordinating such reporting requirements with other
schemes already applicable to persons conducting such activity; and
(viii) Suggested means of learning of, encouraging, and coordinating research opportunities, plans
and activities relating to reducing such incidental taking from such specified activities, and evaluating its
effects.
(2) The Director shall determine the adequacy and completeness of a request, and if found to be
adequate, will invite information, suggestions, and comments on the preliminary finding of negligible
impact and on the proposed specific regulations through notice in the FEDERAL REGISTER, newspapers of
general circulation, and appropriate electronic media in the coastal areas that may be affected by such
activity. All information and suggestions will be considered by the Fish and Wildlife Service in
developing final findings and effective specific regulations.
(3) The Director shall evaluate each request to determine, based on the best available scientific
evidence, whether the total taking will have a negligible impact on the species or stock and, where
appropriate, will not have an unmitigable adverse impact on the availability of such species or stock for
subsistence uses. If the Director finds that mitigating measures would render the impact of the
specified activity negligible when it would not otherwise satisfy that requirement, the Director may make
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a finding of negligible impact subject to such mitigating measures being successfully implemented. Any
preliminary findings of “negligible impact” and “no unmitigable adverse impact” shall be proposed for
public comment along with the proposed specific regulations.
(4) If the Director cannot make a finding that the total taking will have a negligible impact in the
species or stock or will not have an unmitigable adverse impact on the availability of such species or
stock for subsistence uses, the Director shall publish in the FEDERAL REGISTER the negative finding along
with the basis for denying the request.
(e) Specific regulations. (1) Specific regulations will be established for each allowed activity which
set forth (i) permissible methods of taking, (ii) means of effecting the least practicable adverse impact
on the species and its habitat and on the availability of the species for subsistence uses, and (iii)
requirements for monitoring and reporting.
(2) Regulations will be established based on the best available scientific information. As new
information is developed, through monitoring, reporting, or research, the regulations may be modified,
in whole or part, after notice and opportunity for public review.
(f) Letters of Authorization. (1) A Letter of Authorization, which may be issued only to U.S. citizens,
is required to conduct activities pursuant to any specific regulations established. Requests for Letters
of Authorization shall be submitted to the Director, U.S. Fish and Wildlife Service, Department of the
Interior, Washington, DC 20240. The information to be submitted in a request may be obtained by
writing the Director. Once specific regulations are effective, the Service will to the maximum extent
possible, process subsequent applications for Letters of Authorization within 30 days after receipt of
the application by the Service.
(2) Issuance of a Letter of Authorization will be based on a determination that the level of taking will
be consistent with the findings made for the total taking allowable under the specific regulations.
(3) Notice of issuance of all Letters of Authorization will be published in the FEDERAL REGISTER within
30 days of issuance.
(4) Letters of Authorization will specify the period of validity and any additional terms and conditions
appropriate for the specific request.
(5) Letters of Authorization shall be withdrawn or suspended, either on an individual or class basis,
as appropriate, if, after notice and opportunity for public comment, the Director determines: (i) The
regulations prescribed are not being substantially complied with, or (ii) the taking allowed is having, or
may have, more than a negligible impact on the species or stock, or where relevant, an unmitigable
adverse impact on the availability of the species or stock for subsistence uses.
(6) The requirement for notice and opportunity for public review in paragraph (f)(5) of this section
shall not apply if the Director determines that an emergency exists which poses a significant risk to the
well-being of the species or stocks of marine mammals concerned.
(7) A violation of any of the terms and conditions of a Letter of Authorization or of the specific
regulations may subject the Holder and/or any individual who is operating under the authority of the
Holder's Letter of Authorization to penalties provided in the Marine Mammal Protection Act of 1972 (16
U.S.C. 1361-1407).
[48 FR 31225, July 7, 1983, as amended at 54 FR 40348, Sept. 29, 1989; 55 FR 28765, July 13, 1990; 56 FR
27463, June 14, 1991]

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Subpart D—Special Exceptions
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§18.30 Polar bear sport-hunted trophy import permits.
(a) Application procedure. You, as the hunter or heir of the hunter's estate, must submit an
application for a permit to import a trophy of a polar bear taken in Canada to the U.S. Fish and Wildlife
Service, Office of Management Authority, 4401 N. Fairfax Drive, Arlington, Virginia 22203. You must use
an official application (Form 3-200) provided by the Service and must include as an attachment all of
the following additional information:
(1) Certification that:
(i) You or the deceased hunter took the polar bear as a personal sport-hunted trophy;
(ii) You will use the trophy only for personal display purposes;
(iii) The polar bear was not a pregnant female, a female with dependent nursing cub(s) or a
nursing cub (such as in a family group), or a bear in a den or constructing a den when you took it; and
(iv) For a polar bear taken after April 30, 1994, you made sure the gall bladder and its contents
were destroyed;
(2) Name and address of the person in the United States receiving the polar bear trophy if other
than yourself;
(3) For a polar bear received as an inheritance, documentation to show that you are the legal heir
of the decedent who took the trophy;
(4) Proof that you or the decedent legally harvested the polar bear in Canada as shown by one of
the following:
(i) A copy of the Northwest Territories (NWT) or Nunavut Territory hunting license and tag number;
(ii) A copy of the Canadian CITES export permit that identifies the polar bear by hunting license and
tag number;
(iii) A copy of the NWT or Nunavut Territory export permit; or
(iv) A certification from the Department of Resources, Wildlife, and Economic Development,
Northwest Territories, or the Department of Sustainable Development, Nunavut Territory, that you or
the decedent legally harvested the polar bear, giving the tag number, location (settlement and
population), and season you or the decedent took the bear;
(5) An itemized description of the polar bear parts you wish to import, including size and the sex of
the polar bear;
(6) The month and year the polar bear was sport hunted;
(7) The location (nearest settlement or community) where the bear was sport hunted;
(8) For a female bear or a bear of unknown sex that was taken before January 1, 1986,
documentary evidence that the bear was not pregnant at the time of take, including, but not limited to,
documentation, such as a hunting license or travel itinerary, that shows the bear was not taken in
October, November, or December or that shows that the location of the hunt did not include an area
that supported maternity dens; and
(9) For a female bear, bear of unknown sex, or male bear that is less than 6 feet in length (from tip
of nose to the base of the tail) that was taken prior to the 1996/97 NWT polar bear harvest season,
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available documentation to show that the bear was not nursing, including, but not limited to,
documentation, such as a certification from the NWT, that the bear was not taken while part of a family
group.
(b) Definitions. In addition to the definitions in this paragraph, the definitions in 50 CFR 10.12, 18.3,
and 23.3 apply to this section.
(1) Sport-hunted trophy means a mount, rug or other display item composed of the hide, hair,
skull, teeth, baculum, bones, and claws of the specimen which was taken by the applicant or decedent
during a sport hunt for personal, noncommercial use and does not include any internal organ of the
animal, including the gall bladder. Articles made from the specimen, such as finished or unfinished,
worked, manufactured, or handicraft items for use as clothing, curio, ornamentation, jewelry, or as a
utilitarian item are not considered trophy items.
(2) Management agreement means a written agreement between parties that share management
responsibilities for a polar bear population which describes what portion of the harvestable quota will be
allocated to each party and other measures which may be taken for the conservation of the population,
such as harvest seasons, sex ratio of the harvest, and protection of females and cubs.
(c) Procedures for issuance of permits and modification, suspension or revocation of permits.
We, the Service, shall suspend, modify or revoke permits issued under this section:
(1) In accordance with regulations contained in §18.33; and
(2) If, in consultation with the appropriate authority in Canada, we determine that the sustainability
of Canada's polar bear populations is being adversely affected or that sport hunting may be having a
detrimental effect on maintaining polar bear populations throughout their range.
(d) Issuance criteria. In deciding whether to issue an import permit for a sport-hunted trophy, we
must determine in addition to the general criteria in part 13 of this subchapter whether:
(1) You previously imported the specimen into the United States without a permit;
(2) The specimen meets the definition of a sport-hunted trophy in paragraph (b) of this section;
(3) You legally harvested the polar bear in Canada;
(4) Canada has a monitored and enforced sport-hunting program consistent with the purposes of
the 1973 International Agreement on the Conservation of Polar Bears;
(5) Canada has a sport-hunting program, based on scientifically sound quotas, ensuring the
maintenance of the affected population at a sustainable level; and
(6) The export and subsequent import:
(i) Are consistent with the provisions of the Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES) and other international agreements and conventions; and
(ii) Are not likely to contribute to illegal trade in bear parts, including for bears taken after April 30,
1994, that the gall bladder and its contents were destroyed.
(e) Additional permit conditions. Your permit to import a sport-hunted trophy of a polar bear taken
in Canada is subject to the permit conditions outlined in §18.31(d) and the following additional permit
conditions:
(1) You, the permittee, may not import internal organs of the polar bear, including the gall bladder;
(2) After import you may not alter or use the trophy in a manner inconsistent with the definition of a
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sport-hunted polar bear trophy as given in §18.30(b);
(3) You may not import a sport-hunted trophy if the polar bear at the time you or the decedent took
it was:
(i) A nursing bear or a female with nursing young (i.e., part of a family group);
(ii) A pregnant female; or
(iii) A bear moving into a den or in a den;
(4) You must present to Service personnel at the time of import a valid CITES document from the
country of export or re-export;
(5) You must comply with the following import procedures:
(i) Import the sport-hunted trophy through a designated port for wildlife imports (see §14.12 of this
subchapter) during regular business hours, except for full mount trophies that have been granted an
exception to designated port permit requirements under §14.32 of this subchapter;
(ii) Not send the trophy through the international mail; and
(iii) Notify Service personnel at the port at least 48 hours before the import (see §14.54 of this
subchapter) and make arrangements for Service personnel to affix a tag in accordance with paragraph
(e)(7) of this section prior to being cleared (see §14.52 of this subchapter);
(6) You must import all parts of a single trophy at the same time;
(7) The following tagging/marking procedures apply:
(i) Service personnel must affix a permanently locking tag that contains a unique serial number
and the common name “polar bear” to the hide which must remain fixed indefinitely to the hide as proof
of legal import; and
(ii) Service personnel must permanently mark upon import the parts of the trophy other than the
hide, such as the skull and bones, with the hide tag number; and
(8) If the tag comes off the hide, you must within 30 days:
(i) Contact the nearest Service office at a designated port or a Law Enforcement office as given in
§10.22 of this subchapter to schedule a time to present the trophy for retagging;
(ii) Provide as proof that the trophy had been tagged and legally imported a copy of the:
(A) Canceled CITES export permit or re-export certificate;
(B) Canceled U.S. import permit issued under this section; or
(C) Cleared wildlife declaration form (3-177); and
(iii) Present either the broken tag, or if the tag was lost, a signed written explanation of how and
when the tag was lost.
(f) Duration of permits. The permit will be valid for no more than one year from the date of
issuance.
(g) Fees. (1) You must pay the standard permit processing fee as given in §13.11(4) when filing an
application.
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(2) You must pay the issuance fee of $1,000 when we notify you the application is approved. We
cannot issue an import permit until you pay this fee. We will use the issuance fee to develop and
implement cooperative research and management programs for the conservation of polar bears in
Alaska and Russia under section 113(d) of the Marine Mammal Protection Act.
(h) Scientific review. (1) We will undertake a scientific review of the impact of permits issued under
this section on the polar bear populations in Canada within 2 years of March 20, 1997.
(i) The review will provide an opportunity for public comment and include a response to the public
comment in the final report; and
(ii) We will not issue permits under this section if we determine, based upon scientific review, that
the issuance of permits under this section is having a significant adverse impact on the polar bear
populations in Canada; and
(2) After the initial review, we may review whether the issuance of permits under this section is
having a significant adverse impact on the polar bear populations in Canada annually in light of the best
scientific information available. The review must be completed no later than January 31 in any year a
review is undertaken.
(i) Findings. Polar bear sport-hunted trophies may only be imported after issuance of an import
permit, and in accordance with the following findings and conditions:
(1) We have determined that the Northwest Territories and Nunavut Territory, Canada, have a
monitored and enforced sport-hunting program that meets issuance criteria of paragraphs (d) (4) and
(5) of this section for the following populations: Southern Beaufort Sea, Northern Beaufort Sea,
Viscount Melville Sound (subject to the lifting of the moratorium in this population), Western Hudson
Bay, M'Clintock Channel (only for polar bears lawfully taken on or before May 31, 2000), Lancaster
Sound, and Norwegian Bay, and that:
(i) For the Southern Beaufort Sea population, no bears are taken west of the equidistant line of the
Beaufort Sea;
(ii) For all populations, females with cubs, cubs, or polar bears moving into denning areas or
already in dens are protected from taking by hunting activities; and
(iii) For all populations, management agreements among all management entities with scientifically
sound quotas are in place; and
(2) Any sport-hunted trophy taken in the Northwest Territories, Canada, between December 21,
1972, and April 30, 1994, may be issued an import permit when:
(i) From an approved population listed in paragraph (i)(1); and
(ii) The issuance criteria of paragraph (d) (1), (2), (3), and (6) of this section are met.
[62 FR 7329, Feb. 18, 1997, as amended at 64 FR 1539, Jan. 11, 1999; 66 FR 1907, Jan. 10, 2001; 66 FR 50851,
Oct. 5, 2001]

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§18.31 Scientific research permits and public display permits.
The Director may, upon receipt of an application and in accordance with the issuance criteria of
this section, issue a permit authorizing the taking and importation of marine mammals for scientific
research purposes or for public display.
(a) Application procedure. Applications for permits to take and import marine mammals for
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scientific research purposes or for public display shall be submitted to the Director. Each such
application must contain the general information and certification required by §13.12(a) of this
subchapter plus the following additional information:
(1) A statement of the purpose, date, location and manner of the taking or importation;
(2) A description of the marine mammal or the marine mammal products to be taken or imported,
including the species or subspecies involved; the population stock, when known, the number of
specimens or products (or the weight thereof, where appropriate); and the anticipated age, size, sex,
and condition (i.e., whether pregnant or nursing) of the animals involved;
(3) If the marine mammal is to be taken and transported alive, a complete description of the
manner of transportation, care and maintenance, including the type, size, and construction of the
container or artificial environment; arrangements for feeding and sanitation; a statement of the
applicant's qualifications and previous experience in caring for and handling captive marine mammals
and a like statement as to the qualifications of any common carrier or agent to be employed to
transport the animal; and a written certification of a licensed veterinarian knowledgeable in the field of
marine mammals that he has personally reviewed the arrangements for transporting and maintaining
the animals and that in his opinion they are adequate to provide for the well-being of the animal;
(4) If the application is for a scientific research permit, a detailed description of the scientific
research project or program in which the marine mammal or marine mammal product is to be used
including a copy of the research proposal relating to such program or project and the names and
addresses of the sponsor or cooperating institution and the scientists involved;
(5) If the application is for a scientific research permit, and if the marine mammal proposed to be
taken or imported is listed as an endangered or threatened species or has been designated by the
Secretary as depleted, a detailed justification of the need for such a marine mammal, including a
discussion of possible alternatives, whether or not under the control of the applicant; and
(6) If the application is for a public display permit, a detailed description of the proposed use to
which the marine mammal or marine mammal product is to be put, including the manner, location, and
times of display, whether such display is for profit, an estimate of the numbers and types of persons
who it is anticipated will benefit for such display, and whether and to what extent the display is
connected with educational or scientific programs. There shall also be included a complete description
of the enterprise seeking the display permit and its educational, and scientific qualifications, if any.
(b) Review by Marine Mammal Commission. Upon receipt of an application the Director shall
forward the application to the Marine Mammal Commission together with a request for the
recommendations of the Commission and the Committee of Scientific Advisors on Marine Mammals. In
order to comply with the time limits provided in these regulations, the Director shall request that such
recommendation be submitted within 30 days of receipt of the application by the Commission. If the
Commission or the Committee, as the case may be, does not respond within 30 days from the receipt
of such application by the Commission, the Director shall advise the Commission in writing that failure
to respond within 45 days from original receipt of the application (or such longer time as the Director
may establish) shall be considered as a recommendation from the Commission and the Committee
that the permit be issued. The Director may also consult with any other person, institution or agency
concerning the application.
(c) Issuance criteria. Permits applied for under this section shall be issued, suspended, modified
and revoked pursuant to regulations contained in §18.33. In determining whether to issue a scientific
research permit, the Director shall consider whether the proposed taking or importation will be
consistent with the policies and purposes of the Act; and whether the granting of the permit is required
to further a bona fide and necessary or desirable scientific purpose, taking into account the benefits
anticipated to be derived from the scientific research contemplated and the effect of the purposed
taking or importation on the population stock and the marine ecosystem. In determining whether to
issue a public display permit, the Director shall consider whether the proposed taking or importation will
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be consistent with the policies and purposes of the Act; whether a substantial public benefit will be
gained from the display contemplated, taking into account the manner of the display and the anticipated
audience on the one hand, and the effect of the proposed taking or importation on the population stocks
of the marine mammal in question and the marine ecosystem on the other; and the applicant's
qualifications for the proper care and maintenance of the marine mammal or the marine mammal
product, and the adequacy of his facilities.
(d) Additional permit conditions. In addition to the general conditions set forth in part 13 of this
subchapter B, permits issued under this section shall be subject to the following conditions:
(1) Any permit issued under these regulations must be in the possession of the person to whom it
is issued (or an agent of such person) during:
(i) The time of the authorized taking or importation;
(ii) The period of any transit of such person or agent which is incidental to such taking or
importation; and
(iii) Any other time while any marine mammal taken or imported under such permit is in the
possession of such person or agent.
(2) A duplicate copy of the issued permit must be physically attached to the container, package,
enclosure, or other means of containment, in which the marine mammal is placed for purposes of
storage, transit, supervision, or care.
(e) Tenure of permits. The tenure of permits for scientific research or public display shall be
designated on the face of the permit.
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§18.32 Waiver of the moratorium.
See subpart F (Waiver of the moratorium; State laws and regulations) and subpart G (Notice and
Hearing on section 103 Regulations) for procedures regarding waivers of the moratorium in those
circumstances where a state provides an acceptable management program for a species or
population stock within its jurisdiction.
[40 FR 59442, Dec. 24, 1975]

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§18.33 Procedures for issuance of permits and modification, suspension, or revocation
thereof.
(a) Whenever application for a permit is received by the director which the director deems
sufficient, he shall, as soon as practicable, publish a notice thereof in the FEDERAL REGISTER. Such
notice shall set forth a summary of the information contained in such application. Any interested party
may, within 30 days after the date of publication of such notice, submit to the director his written data or
views with respect to the taking or importation proposed in such application and may request a hearing
in connection with the action to be taken thereon.
(b) If the request for a hearing is made within the 30-day period referred to in paragraph (a) of this
section, or if the director determines that a hearing would otherwise be advisable, the director may,
within 60 days after the date of publication of the notice referred to in paragraph (a) of this section,
afford to such requesting party or parties an opportunity for a hearing. Such hearing shall also be open
to participation by any interested members of the public. Notice of the date, time, and place of such
hearing shall be published in the FEDERAL REGISTER not less than 15 days in advance of such hearing.
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Any interested person may appear in person or through representatives at the hearing and may submit
any relevant material, data, views, comments, arguments, or exhibits. A summary record of the hearing
shall be kept.
(c) As soon as practicable but not later than 30 days after the close of the hearing (or if no hearing
is held, as soon as practicable after the end of the 30 days succeeding publication of the notice
referred to in paragraph (a) of this section the director shall issue or deny issuance of the permit.
Notice of the decision of the director shall be published in the FEDERAL REGISTER within 10 days after the
date of such issuance or denial. Such notice shall include the date of the issuance or denial and
indicate where copies of the permit, if issued, may be obtained.
(d) Any permit shall be subject to modification, suspension, or revocation by the director in whole
or in part in accordance with these regulations and the terms of such permits. The permittee shall be
given written notice by registered mail, return receipt requested, of any proposed modification,
suspension, or revocation. Such notice shall specify:
(1) The action proposed to be taken along with a summary of the reasons therefor;
(2) In accordance with 5 U.S.C. 558, the steps which the permittee may take to demonstrate or
achieve compliance with all lawful requirements; and
(3) That the permittee is entitled to a hearing thereon if a written request for such a hearing is
received by the Director within 10 days after receipt of the aforesaid notice or such other later date as
may be specified in the notice to the permittee. The time and place of the hearing, if requested by the
permittee, shall be determined by the director and a written notice thereof given to the permittee by
registered mail, return receipt requested, not less than 15 days prior to the date of hearing specified.
The director may, in his discretion, allow participation at the hearing by interested members of the
public. The permittee and other parties participating may submit all relevant material, data, views,
comments, arguments, and exhibits at the hearing. A summary record shall be kept of any such
hearing.
(e) The Director shall make a decision regarding the proposed modification, suspension, or
revocation, as soon as practicable after the close of the hearing, or if no hearing is held, as soon as
practicable after the close of the 10 day period during which a hearing could have been requested.
Notice of the modification, suspension, or revocation shall be published in the FEDERAL REGISTER within
10 days from the date of the Director's decision. In no event shall the proposed action take effect until
notice of the Director's decision is published in the FEDERAL REGISTER.
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§18.34 Guidelines for use in safely deterring polar bears.
(a) These guidelines are intended for use in safely deterring polar bears in the wild. They provide
acceptable types of deterrence actions that any person, or their employee, or their agent, can use to
deter a polar bear from damaging private property; or that any person can use to deter a polar bear
from endangering personal safety; or that a government employee can use to deter a polar bear from
damaging public property, and not cause the serious injury or death of a polar bear. Anyone acting in
such a manner and conducting activities that comply with the guidelines in this subpart does not need
authorization under the MMPA to conduct such deterrence. Furthermore, actions consistent with these
guidelines do not violate the take prohibitions of the MMPA or this part. A Federal, State or local
government official or employee may take a polar bear in the course of his duties as an official or
employee, as long as such taking is accomplished in accordance with §18.22 of this part.
(b) There are two types of deterrence measures that a person, or their employee, or their agent
could follow to nonlethally deter a polar bear. Each type of measure includes a suite of appropriate
actions that the public may use.
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(1) Passive deterrence measures. Passive deterrence measures are those that prevent polar
bears from gaining access to property or people. These measures provide for human safety and do not
increase the risk of serious injury or death of a polar bear. They include:
(i) Rigid fencing. Rigid fencing and other fixed barriers such as gates and fence skirting can be
used around buildings or areas to limit bears from accessing community or industrial sites and
buildings. Fencing areas 5 acres (∼2 ha) and smaller can be used to limit human-bear interactions.
Industry standard chain-link fencing material can be used. Chain-link fencing can be placed around
buildings on pilings as fence skirting to limit access of bears underneath the buildings.
(ii) Bear exclusion cages. Bear exclusion cages provide a protective shelter for people in areas
frequented by bears. Cages erected at building entry and exit points exclude polar bears from the
immediate area and allow safe entry and exit for persons gaining access to, or leaving, a building
should a polar bear be in the vicinity. Additionally, they provide an opportunity for people exiting a
building to conduct a visual scan upon exit. Such a scan is especially important in areas where
buildings are constructed above ground level due to permafrost because bears may be resting
underneath. These cages can be used at homes or industrial facilities to deter bears as well. Cages
can be used in remote areas where bear use is not known, and along bear travel corridors, e.g., within
0.5 mile from coastline, to deter bears from facilities. Cages must be no smaller than 4 ft (width) by 4 ft
(length) by 8 ft (height). Bars must be no smaller than 1 inch wide. Distance between bars must be no
more than 4 inches clear on stairways and landings or when otherwise attached to a habitable
structure; they may be no more than 5 inches clear for use in cages not attached to any habitable
structure. A 4-inch distance between the bars would be sufficient to prevent a bear from reaching
through, while providing visible space between bars. The ceiling of the cage must be enclosed.
(iii) Bear-resistant garbage containers. Bear-resistant garbage containers prevent bears from
accessing garbage as a food source and limit polar bears from becoming food-conditioned or
habituated to people and facilities. The absence of habituation further reduces the potential for bearhuman interactions. Bear-resistant garbage cans and garbage bins are manufactured by various
companies and in various sizes. Commercially designed residential bear-resistant containers (32-130
gallons) can be used. Two- to 6-cubic yard containers can be specifically designed by commercial
vendors as bear-proof containers or have industry-standard lid locks to prohibit bear entry, depending
on the need and location. For remote seasonal camps, garbage can be temporarily stored in steel
drums secured with locking rings and a gasket, and removed from the site when transportation is
available. Larger garbage containers, such as dumpsters or “roll-offs” (20 to 40 cubic yards), can limit
bear-human interactions when the containers have bear-proof lids. Lids must be constructed of heavy
steel tubing or similarly constructed with heavy expanded metal.
(2) Preventive deterrence measures. Preventive deterrence measures are those that can
dissuade a polar bear from initiating an interaction with property or people. These measures provide for
safe human use and do not increase the risk of serious injury or death of a polar bear. These are:
(i) Acoustic devices. Acoustic deterrent devices may be used to create an auditory disturbance
causing polar bears to move away from the affected area. The reasonable use of loud noises, e.g.,
vehicle engines, automobile sirens or horns, and air-horns, where such auditory stimuli could startle a
bear and disrupt its approach to property or people, is authorized. This authorization is limited to
deterrent devices with a sound strength of no greater than 140 dB SPL to be deployed for no more than
a 30-second continuous time interval. The use of commercially available air horns or other audible
products used as perimeter alarms, which create sounds that fall below this upper limit, is acceptable.
(ii) Vehicle or boat deterrence. Patrolling the periphery of a compound or encampment using a
vehicle, such as a truck or all-terrain vehicle (e.g., a snowmobile or a four wheeler), and deterring, but
not chasing, polar bears with engine noise, or by blocking their approach without making a physical
contact with the animal, is an acceptable preventive deterrence. Similarly patrolling an area in a small
boat using similar methods is acceptable.
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(c) The deterrence guidelines are passive or preventive in nature. Any action to deter polar bears
that goes beyond these specific measures could result in a taking and, unless otherwise exempted
under the MMPA, would require separate authorization. The Service acknowledges that there will be
numerous new techniques developed, or new applications of existing techniques, for deterring bears.
The Service will work to establish a system for evaluating new bear deterrence applications and
techniques and will update this set of guidelines with examples of future approved methods.
Deterrence actions (other than the measures described in these guidelines) that do not result in
serious injury or death to a polar bear remain permissible for persons identified in section 101(a)(4)(A)
of the MMPA. Prior to conducting activities beyond those specifically described in these guidelines,
persons should contact the Service's Alaska Regional Office's Marine Mammal Program for further
guidance (for the location of the Alaska Regional Office see 50 CFR 2.2(g)).
[75 FR 61637, Oct. 6, 2010]

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Subpart E—Depleted Species or Stocks [Reserved]
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Subpart F—Transfer of Management Authority to States
NOTE: Regulations governing the transfer of management authority to States pursuant to section 109 of the
Marine Mammal Protection Act for marine mammal species under the jurisdiction of the Secretary of the Interior are
found at part 403 of this title.
[48 FR 22456, May 18, 1983]

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Subpart G—Notice and Hearing on Section 103 Regulations
SOURCE: 41 FR 5396, Feb. 6, 1976, unless otherwise noted.

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§18.70 Basis and purpose.
(a) Sections 101(a)(2), 101(a)(3)(A), and 101(b) of the Marine Mammal Protection Act of 1972 (16
U.S.C. 1371(a)(2), 1371(a)(3)(A), and 1371(b)) and these regulations authorize the Director, U.S. Fish
and Wildlife Service, to: (1) Impose regulations governing the taking of marine mammals incidental to
commercial fishing operations; (2) waive the moratorium and adopt regulations with respect to the
taking and importing of animals from each species of marine mammals under his jurisdiction; and (3)
prescribe regulations governing the taking of depleted marine mammals by any Indian, Aleut or Eskimo,
respectively. In prescribing regulations to carry out the provisions of said sections, the act refers the
Director to section 103 (16 U.S.C. 1373). In accordance with section 103(d), regulations must be made
on the record after opportunity for an agency hearing on such regulations and, in the case of a waiver,
on the determination by the Director to waive the moratorium pursuant to section 101(a)(3)(A) (16
U.S.C. 1371(a)(3)(A)).
(b) [Reserved]
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§18.71 Definitions.
Definitions shall be the same as in subpart A of this part except as follows:
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(a) Party means for the purposes of this subpart:
(1) The Director or his representative; or
(2) A person who has notified the Director by specified dates of his or her intent to participate in the
hearing pursuant to §§18.75 and 18.84(b).
(b) Presiding officer means, for the purposes of this subpart, an administrative law judge of the
Office of Hearings and Appeals appointed in accordance with 5 U.S.C. 3105.
(c) Witness means, for the purposes of this subpart, any person who provides direct testimony on
the proposed regulations and waiver. A person may be both a party and a witness.
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§18.72 Scope of regulations.
The procedural regulations in this subpart govern the practice and procedure in hearings held
under section 103(d) of the Act. These hearings will be governed by the provisions of sections 556 and
557 of the Administrative Procedure Act (5 U.S.C. 556 and 557). The regulations shall be construed to
secure the just, speedy, and inexpensive determination of all issues raised with respect to any waiver
and/or regulation proposed pursuant to section 103(d) of the act in a manner which gives full protection
to the rights of all persons affected thereby.
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§18.73 Burden of proof.
The proponents of the proposed regulations and waiver must demonstrate that any taking or
importation of any marine mammal under such proposed regulations and waiver would be consistent
with the act.
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§18.74 Notice of hearing.
(a) A notice of hearing on any proposed regulations shall be published in the FEDERAL REGISTER,
together with the Director's proposed determination to waive the moratorium pursuant to section 101(a)
(3)(A) (16 U.S.C. 1371(a)(3)(A)), where applicable.
(b) The notice shall state:
(1) The nature of the hearing;
(2) The place and date of the hearing. The date shall not be less than 60 days after publication of
notice of the hearing;
(3) The legal authority under which the hearing is to be held;
(4) The proposed regulations and waiver, where applicable, and a summary of the statements
required by section 103(d) of the Act (16 U.S.C. 1373(d));
(5) Issues of fact which may be involved in the hearing;
(6) If an Environmental Impact Statement is required, the date of publication of the Statement and
the times and place(s) where the Statement and comments thereon may be viewed and copied;
(7) Any written advice received from the Marine Mammal Commission;
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(8) The times and place(s) where records and submitted direct testimony will be kept for public
inspection, along with appropriate references to any other documents;
(9) The final date for filing with the Director a notice of intent to participate in the hearing pursuant
to §18.75;
(10) The final date for submission of direct testimony on the proposed regulations and waiver, if
applicable, and the number of copies required;
(11) The docket number assigned to the case which shall be used in all subsequent proceedings;
and
(12) The place and date of the prehearing conference.
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§18.75 Notification by interested persons.
Any person desiring to participate as a party shall notify the Director, by certified mail, on or before
the date specified in the notice of hearing.
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§18.76 Presiding officer.
(a) Upon publication of the notice of hearing pursuant to §18.74, the Office of Hearings and
Appeals shall appoint a presiding officer pursuant to 5 U.S.C. 3105. No individual who has any conflict
of interest, financial or otherwise, shall serve as presiding officer in such proceeding.
(b) The presiding officer, in any proceeding under this subpart, shall have power to:
(1) Change the time and place of the hearing and adjourn the hearing;
(2) Evaluate direct testimony submitted pursuant to these regulations, make a preliminary
determination of the issues, conduct a prehearing conference to determine the issues for the hearing
agenda, and cause to be published in the FEDERAL REGISTER a final hearing agenda;
(3) Rule upon motions, requests and admissibility of direct testimony;
(4) Administer oaths and affirmations, question witnesses and direct witnesses to testify;
(5) Modify or waive any rule (after notice) when determining no party will be prejudiced;
(6) Receive written comments and hear oral arguments;
(7) Render a recommended decision; and
(8) Do all acts and take all measures, including regulation of media coverage, for the maintenance
of order at and the efficient conduct of the proceeding.
(c) In case of the absence of the original presiding officer or his inability to act, the powers and
duties to be performed by the original presiding officer under this part in connection with a proceeding
may, without abatement of the proceeding, be assigned to any other presiding officer by the Office of
Hearings and Appeals unless otherwise ordered by the Director.
(d) The presiding officer shall withdraw from the proceeding upon his own motion or upon the filing
of a motion by a party under §18.76(e) if he deems himself disqualified under recognized canons of
judicial ethics.
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(e) A presiding officer may be requested to withdraw at any time prior to the recommended
decision. If there is filed by a party in good faith a timely and sufficient affidavit alleging the presiding
officer's personal bias, malice, conflict of interest or other basis which might result in prejudice to a
party, the hearing shall recess. The Director of the Office of Hearings and Appeals shall immediately
determine the matter as a part of the record and decision in the proceeding, after making such
investigation or holding such hearings, or both, as he may deem appropriate in the circumstances.
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§18.77 Direct testimony submitted as written documents.
(a) Unless otherwise specified, all direct testimony, including accompanying exhibits, must be
submitted to the presiding officer in writing no later than the dates specified in the notice of the hearing
(§18.74), the prehearing order (§18.82), or within 15 days after the conclusion of the prehearing
conference (§18.84) as the case may be. All direct testimony, referred to in the affidavit and made a
part thereof, must be attached to the affidavit. Direct testimony submitted with exhibits must state the
issue to which the exhibit relates; if no such statement is made, the presiding officer shall determine
the relevance of the exhibit to the issues published in the FEDERAL REGISTER.
(b) The direct testimony submitted shall contain:
(1) A concise statement of the witness' interest in the proceeding and his position regarding the
issues presented. If the direct testimony is presented by a witness who is not a party, the witness shall
state his relationship to the party; and
(2) Facts that are relevant and material.
(c) The direct testimony may propose issues of fact not defined in the notice of the hearing and the
reason(s) why such issues should be considered at the hearing.
(d) Ten copies of all direct testimony must be submitted unless the notice of the hearing otherwise
specifies.
(e) Upon receipt, direct testimony shall be assigned a number and stamped with that number and
the docket number.
(f) Contemporaneous with the publication of the notice of hearing, the Director's direct testimony in
support of the proposed regulations and waiver, where applicable, shall be available for public
inspection as specified in the notice of hearing. The Director may submit additional direct testimony
during the time periods allowed for submission of such testimony by witnesses.
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§18.78 Mailing address.
Unless otherwise specified in the notice of hearing, all direct testimony shall be addressed to the
Presiding Officer, c/o Director, U.S. Fish and Wildlife Service, Washington, DC 20240. All affidavits and
exhibits shall be clearly marked with the docket number of the proceedings.
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§18.79 Inspection and copying of documents.
Any document in a file pertaining to any hearing authorized by this subpart or any document
forming part of the record of such a hearing may be inspected and/or copied in the Office of the
Director, U.S. Fish and Wildlife Service, Washington, DC 20240, unless the file is in the care and
custody of the presiding officer, in which case he shall notify the parties as to where and when the
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record may be inspected.
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§18.80 Ex parte communications.
(a) After notice of a hearing is published in the FEDERAL REGISTER, all communications, whether oral
or written, involving any substantive or procedural issue and directed either to the presiding officer or to
the Director, Deputy Director or Marine Mammal Coordinator, U.S. Fish and Wildlife Service, without
reference to these rules of procedure, shall be deemed ex parte communications and are not to be
considered part of the record for decision.
(b) A record of oral conversations shall be made by the above persons who are contacted. All
communications shall be available for public viewing at times and place(s) specified in the notice of
hearing.
(c) The presiding officer shall not communicate with any party on any fact in issue or on the merits
of the matter unless notice and opportunity is given for all parties to participate.
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§18.81 Prehearing conference.
(a) After an examination of all the direct testimony submitted pursuant to §18.77, the presiding
officer shall make a preliminary determination of issues of fact which may be addressed at the hearing.
(b) The presiding officer's preliminary determination shall be made available at the place or places
provided in the notice of the hearing (§18.74(b)(8)) at least five days before the prehearing conference
is held.
(c) The purpose of the prehearing conference shall be to enable the presiding officer to determine,
on the basis of the direct testimony submitted and prehearing discussions:
(1) Whether the presiding officer's preliminary determination of issues of fact for the hearing has
omitted any significant issues;
(2) What facts are not in dispute;
(3) Which witnesses may appear at the hearing; and
(4) The nature of the interest of each party and which parties' interests are adverse.
(d) Only parties may participate in the prehearing conference, and a party may appear in person or
be represented by counsel.
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§18.82 Prehearing order.
(a) After the prehearing conference, the presiding officer shall prepare a prehearing order which
shall be published in the FEDERAL REGISTER within ten days after the conclusion of the conference. A
copy of the prehearing order shall be mailed to all Parties.
(b) The prehearing order shall list: (1) All the issues which the hearing shall address, the order in
which those issues shall be presented, and the direct testimony submitted which bears on the issues;
and (2) a final date for submission of direct testimony on issues of fact not included in the notice of
hearing if such issues are presented. The prehearing order may also specify a final date for
submission of direct testimony to rebut testimony previously submitted during the time specified in the
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notice of the hearing.
(c) The presiding officer shall publish with the prehearing order a list of witnesses who may appear
at the hearing, a list of parties, the nature of the interest of each party, and which parties interests are
adverse on the issues presented.
(d) All parties shall be bound by the prehearing order.
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§18.83 Determination to cancel the hearing.
(a) If the presiding officer determines that no issues of material fact are presented by the direct
testimony submitted prior to the date of the hearing, he may publish in the FEDERAL REGISTER such
determination and that on issues of material fact a hearing shall not be held. The presiding officer may
provide an opportunity for argument on any issues of law presented by the direct testimony.
(b) Promptly after oral argument, if any, the presiding officer shall make a recommended decision
based on the record, which in this case shall consist of the direct testimony and any oral argument
presented. He shall transmit to the Director his recommended decision, the record and a certificate
stating that the record contains all the written direct testimony. The Director shall then make a final
decision in accordance with these regulations (§18.91).
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§18.84 Rebuttal testimony and new issues of fact in prehearing order.
(a) Direct testimony to rebut testimony offered during the time period specified in the notice of
hearing may be submitted pursuant to these regulations within fifteen days after the conclusion of the
prehearing conference unless the presiding officer otherwise specifies in the prehearing order.
(b) If the prehearing order presents issues not included in the notice of the hearing published
pursuant to §18.74:
(1) Any person interested in participating at the hearing on such issues presented shall notify the
Director by certified mail of an intent to participate not later than ten days after publication of the
prehearing order. Such person may present direct testimony or cross-examine witnesses only on such
issues presented unless he previously notified the Director pursuant to §18.75; and
(2) Additional written direct testimony concerning such issues may be submitted within the time
provided in the prehearing order. Such direct testimony will comply with the requirements of §18.77.
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§18.85 Waiver of right to participate.
Any person who fails to notify the Director of his intent to participate pursuant to §18.75 or §18.84
shall be deemed to have waived his right to participate as a party.
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§18.86 Conduct of the hearing.
(a) The hearing shall be held at the time and place fixed in the notice of hearing, unless the
presiding officer changes the time or place. If a change occurs, the presiding officer shall publish the
change in the FEDERAL REGISTER and shall expeditiously notify all parties by telephone or by mail. If the
change in time or place of hearing is made less than five days before the date previously fixed for the
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hearing, the presiding officer shall also announce, or cause to be announced, the change at the time
and place previously fixed for the hearing.
(b) The presiding officer shall, at the commencement of the hearing, introduce into the record the
notice of hearing as published in the FEDERAL REGISTER, all subsequent notices published in the FEDERAL
REGISTER, the Environmental Impact Statement if it is required and the comments thereon and agency
responses to the comments, and a list of all parties. Direct testimony shall then be received with
respect to the matters specified in the prehearing order in such order as the presiding officer shall
announce. With respect to direct testimony submitted as rebuttal testimony or in response to new
issues presented by the prehearing conference, the presiding officer shall determine the relevancy of
such testimony.
(c) The hearing shall be publicly conducted and reported verbatim by an official reporter.
(d) If a party objects to the admission or rejection of any direct testimony or to any other ruling of
the presiding officer during the hearing, he shall state briefly the grounds of such objection, whereupon
an automatic exception will follow if the objection is overruled by the presiding officer. The transcript
shall not include argument or debate thereon except as ordered by the presiding officer. The ruling of
the presiding officer on any objection shall be a part of the transcript and shall be subject to review at
the same time and in the same manner as the Director's final decision. Only objections made before
the presiding officer may subsequently be relied upon in the proceedings.
(e) All motions and requests shall be addressed to, and ruled on by, the presiding officer if made
prior to his certification of the transcript, or by the Director if made thereafter.
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§18.87 Direct testimony.
(a) Only direct testimony submitted as provided in these regulations and introduced at the hearing
by a witness shall be considered part of the record. Such direct testimony, when written, shall not be
read into evidence but shall become a part of the record subject to exclusion of irrelevant and
immaterial parts thereof.
(b) The witness introducing direct testimony shall:
(1) State his name, address and occupation;
(2) State qualifications for introducing the direct testimony. If an expert, the witness shall briefly
state the scientific or technical training which qualifies him as an expert;
(3) Identify the direct testimony previously submitted in accordance with these regulations; and
(4) Submit to appropriate cross- and direct-examination. Cross-examination shall be by a party
whose interests are adverse on the issue presented to the witness if the witness is a party, or to the
interests of the party who presented the witness.
(c) A party shall be deemed to have waived the right to introduce direct-testimony if such party fails
to present a witness to introduce the direct-testimony.
(d) Official notice may be taken of such matters as are judicially noticed by the courts of the United
States. Parties shall be given adequate notice, by the presiding officer, at the hearing, of matters so
noticed and shall be given adequate opportunity to show that such facts are inaccurate or are
erroneously noticed.
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§18.88 Cross-examination.
(a) The presiding officer may:
(1) Require the cross-examiner to outline the intended scope of the examination; and
(2) Exclude cross-examination questions that are immaterial, irrelevant or unduly repetitious.
(b) Any party shall be given an opportunity to appear, either in person or through an authorized
counsel or representative, to cross-examine witnesses. Before cross-examining a witness, the party or
counsel shall state his name, address and occupation. If counsel cross-examines the witness, counsel
shall state for the record the authority to act as counsel. Cross-examiners shall be assumed to be
familiar with the direct testimony.
(c) Any party or party's counsel who fails to appear at the hearing to cross-examine an “adverse”
witness shall be deemed to have waived the right to cross-examine that witness.
(d) Scientific, technical or commercial publications may only be utilized for the limited purposes of
impeaching witnesses under cross-examination unless previously submitted and introduced in
accordance with these regulations.
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§18.89 Oral and written arguments.
(a) The presiding officer may, in his discretion, provide for oral argument by parties at the end of
the hearing. Such argument, when permitted, may be limited by the presiding officer to the extent
necessary for the expeditious disposition of the proceeding.
(b) The presiding officer shall announce at the hearing a reasonable period of time within which
any party may file with the presiding officer proposed findings and conclusions and written arguments
or briefs, which are based upon the record and citing where practicable the relevant page or pages of
the transcript. If a party filing a brief desires the presiding officer to reconsider any objection made by
such party to a ruling of the presiding officer, he shall specifically identify such rulings by reference to
the pertinent pages of the transcript and shall state his arguments thereon as a part of the brief.
(c) Oral or written arguments shall be limited to issues arising from direct testimony on the record.
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§18.90 Recommended decision, certification of the transcript and submission of comments on
the recommended decision.
(a) Promptly after expiration of the period for receiving written briefs, the presiding officer shall
make a recommended decision based on the record and transmit the decision to the Director. The
recommended decision shall include:
(1) A statement containing a description of the history of the proceedings;
(2) Findings on the issues of fact with the reasons therefor; and
(3) Rulings on issues of law.
(b) The presiding officer shall also transmit to the Director the transcript of the hearing, the original
and all copies of the direct testimony, and written comments. The presiding officer shall attach to the
original transcript of the hearing a certificate stating that to the best of his knowledge and belief the
transcript is a true transcript of the testimony given at the hearing except in such particulars as are
specified.
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(c) Upon receipt of the recommended decision, the Director shall send a copy thereof to each
party by certified mail and shall publish in the FEDERAL REGISTER a notice of the receipt of the
recommended decision by the Director. The notice shall include:
(1) A summary of the recommended decision;
(2) A statement that any interested person may file written comments on the recommended
decision with the Director by a specified date;
(3) The time(s) and place(s) where the record of the hearing transmitted to the Director pursuant
to paragraph (b) of this section may be inspected by interested persons; and
(4) The time(s) and place(s) where the recommended decision may be inspected and/or copied
by interested persons.
(d) Within thirty days after the notice of receipt of the recommended decision has been published
in the FEDERAL REGISTER, any interested person may file with the Director any written comments on the
recommended decision. All comments, including recommendations from or consultation with the
Marine Mammal Commission, must be submitted during the thirty-day period to the Director at the
above address.
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§18.91 Director's decision.
(a) Upon receipt of the recommended decision and transcript and after the thirty-day period for
receiving written comments on the recommended decision has passed, the Director shall make a final
decision on the proposed regulations and waiver, where applicable. The Director's decision may affirm,
modify, or set aside, in whole or in part, the recommended findings, conclusions and decision of the
presiding officer. The Director may also remand the hearing record to the presiding officer for a fuller
development of the record.
(b) The Director's decision shall include:
(1) A statement containing a description of the history of the proceeding;
(2) Findings on the issues of fact with the reasons therefor;
(3) Rulings on issues of law; and
(4) Any other relevant information which the Director deems appropriate.
(c) The Director's decision shall be published in the FEDERAL REGISTER. If the waiver is approved,
the final adopted regulations shall be promulgated with the decision, or as soon thereafter as
practicable.
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Subpart H—Waiver of Moratorium on Taking and Importation of
Individual Marine Mammal Species
SOURCE: 41 FR 14373, Apr. 5, 1976, unless otherwise noted.

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§18.92 Purpose of regulations.
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The regulations contained in this subpart fulfill the requirements of section 103 of the Act for
regulations to govern the taking and importation of each species of marine mammal for which the
moratorium imposed by section 101 has been waived.
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§18.93 Scope of regulations.
(a) The provisions in this subpart apply only after (1) the Director has made a decision to waive a
moratorium pursuant to section 101(a)(3)(A) of the Act, (2) the opportunity for a hearing required by
section 103(d) of the Act has been provided, and (3) the Director has made a determination, in the
case of State laws and regulations, to approve such State laws and regulations pursuant to section
109(a)(2) of the Act and subpart F of this part.
(b) The provisions of this subpart, unless specifically stated, apply to all taking and/or importation
of each species of marine mammal for which the moratorium has been waived other than takings for
scientific research or public display, which are governed by §18.31 of this part, or takings incidental to
commercial fishing operations which are governed by §18.24.
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§18.94 Pacific walrus (Alaska).
(a) Pursuant to sections 101(a)(3)(A) 103, and 109 of the Marine Mammal Protection Act of 1972,
the moratorium on the hunting and killing of Pacific walrus (Odobenus rosmarus) in waters or on lands
subject to the jurisdiction of the State of Alaska, the United States, or on the high seas by any person,
vessel, or conveyance subject to the jurisdiction of the State of Alaska or the United States, is waived,
provided that beginning August 2, 1979 this waiver shall not be effective, and no taking or importation
under the waiver shall be allowed, until this section is amended to establish regulations to effectively
control taking and otherwise implement the waiver.
(b) [Reserved]
[41 FR 14373, Apr. 5, 1976, as amended at 44 FR 45566, Aug. 2, 1979]

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Subpart I—Nonlethal Taking of Pacific Walruses and Polar Bears
Incidental to Oil and Gas Exploration Activities in the Chukchi Sea and
Adjacent Coast of Alaska
SOURCE: 78 FR 35420, June 12, 2013, unless otherwise noted.
EFFECTIVE DATE NOTE: At 78 FR 35420, June 12, 2013, Subpart I was added, effective through June 12, 2018.

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§18.111 What specified activities does this subpart cover?
Regulations in this subpart apply to the nonlethal incidental, but not intentional, take of small
numbers of Pacific walruses and polar bears by you (U.S. citizens as defined in §18.27(c)) while
engaged in oil and gas exploration activities in the Chukchi Sea and adjacent western coast of Alaska.
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§18.112 In what specified geographic region does this subpart apply?
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This subpart applies to the specified geographic region defined as the continental shelf of the
Arctic Ocean adjacent to western Alaska. This area includes the waters (State of Alaska and Outer
Continental Shelf waters) and seabed of the Chukchi Sea, which encompasses all waters north and
west of Point Hope (68°20′20″ N, −166°50′40 W, BGN 1947) to the U.S.-Russia Convention Line of
1867, west of a north-south line through Point Barrow (71°23′29″ N, −156°28′30 W, BGN 1944), and up
to 200 miles north of Point Barrow. The region also includes the terrestrial coastal land 25 miles inland
between the western boundary of the south National Petroleum Reserve—Alaska (NPR-A) near Icy
Cape (70°20′00″ N, −148°12′00 W) and the north-south line from Point Barrow. This terrestrial region
encompasses a portion of the Northwest and South Planning Areas of the NPR-A. Figure 1 shows the
area where this subpart applies.

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§18.113 When is this subpart effective?
Regulations in this subpart are effective from June 12, 2013 through June 12, 2018 for year-round
oil and gas exploration activities.
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§18.114 How do I obtain a Letter of Authorization?
(a) You must be a U.S. citizen as defined in §18.27(c).
(b) If you are conducting an oil and gas exploration activity in the specified geographic region
described in §18.112 that may cause the taking of Pacific walruses (walruses) or polar bears and you
want nonlethal incidental take authorization under this rule, you must apply for a Letter of Authorization
for each exploration activity. You must submit the application for authorization to our Alaska Regional
Director (see 50 CFR 2.2 for address) at least 90 days prior to the start of the proposed activity.
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(c) Your application for a Letter of Authorization must include the following information:
(1) A description of the activity, the dates and duration of the activity, the specific location, and the
estimated area affected by that activity, i.e., a plan of operation.
(2) A site-specific plan to monitor and mitigate the effects of the activity on polar bears and Pacific
walruses that may be present during the ongoing activities (i.e., marine mammal monitoring and
mitigation plan). Your monitoring program must document the effects to these marine mammals and
estimate the actual level and type of take. The monitoring requirements provided by the Service will
vary depending on the activity, the location, and the time of year.
(3) A site-specific polar bear and/or walrus awareness and interaction plan. An interaction plan for
each operation will outline the steps the applicant will take to limit animal-human interactions, increase
site safety, and minimize impacts to marine mammals.
(4) A record of community consultation or a Plan of Cooperation (POC) to mitigate potential
conflicts between the proposed activity and subsistence hunting, when necessary. Applicants must
consult with potentially affected subsistence communities along the Chukchi Sea coast (Point Hope,
Point Lay, Wainwright, and Barrow) and appropriate subsistence user organizations (the Eskimo
Walrus Commission and the Alaska Nanuuq Commission) to discuss the location, timing, and
methods of proposed operations and support activities and to identify any potential conflicts with
subsistence walrus and polar bear hunting activities in the communities. Applications for Letters of
Authorization must include documentation of all consultations with potentially affected user groups and
a record of community consultation. Documentation must include a summary of any concerns
identified by community members and hunter organizations, and the applicant's responses to identified
concerns. Mitigation measures are described in §18.118.
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§18.115 What criteria does the Service use to evaluate Letter of Authorization requests?
(a) We will evaluate each request for a Letter of Authorization based on the specific activity and the
specific geographic location. We will determine whether the level of activity identified in the request
exceeds that analyzed by us in considering the number of animals likely to be taken and evaluating
whether there will be a negligible impact on the species or adverse impact on the availability of the
species for subsistence uses. If the level of activity is greater, we will reevaluate our findings to
determine if those findings continue to be appropriate based on the greater level of activity that you
have requested. Depending on the results of the evaluation, we may grant the authorization, add further
conditions, or deny the authorization.
(b) In accordance with §18.27(f)(5), we will make decisions concerning withdrawals of Letters of
Authorization, either on an individual or class basis, only after notice and opportunity for public
comment.
(c) The requirement for notice and public comment in paragraph (b) of this section will not apply if
we determine that an emergency exists that poses a significant risk to the well-being of species or
stocks of Pacific walruses or polar bears.
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§18.116 What does a Letter of Authorization allow?
(a) Your Letter of Authorization may allow the nonlethal incidental, but not intentional, take of
walruses and polar bears when you are carrying out one or more of the following activities:
(1) Conducting geological and geophysical surveys and associated activities;
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(2) Drilling exploratory wells and associated activities; or
(3) Conducting environmental monitoring activities associated with exploration activities to
determine specific impacts of each activity.
(b) Each Letter of Authorization will identify conditions or methods that are specific to the activity
and location.
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§18.117 What activities are prohibited?
(a) Intentional take and lethal incidental take of walruses or polar bears; and
(b) Any take that fails to comply with this part or with the terms and conditions of your Letter of
Authorization.
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§18.118 What are the mitigation, monitoring, and reporting requirements?
(a) Mitigation. Holders of a Letter of Authorization must use methods and conduct activities in a
manner that minimizes to the greatest extent practicable adverse impacts on walruses and polar
bears, their habitat, and on the availability of these marine mammals for subsistence uses. Dynamic
management approaches, such as temporal or spatial limitations in response to the presence of
marine mammals in a particular place or time or the occurrence of marine mammals engaged in a
particularly sensitive activity (such as feeding), must be used to avoid or minimize interactions with
polar bears, walruses, and subsistence users of these resources.
(1) All applicants. (i) We require holders of Letters of Authorization to cooperate with us and other
designated Federal, State, and local agencies to monitor the impacts of oil and gas exploration
activities on polar bears and Pacific walruses.
(ii) Holders of Letters of Authorization must designate a qualified individual or individuals to
observe, record, and report on the effects of their activities on polar bears and Pacific walruses.
(iii) Holders of Letters of Authorization must have an approved polar bear and/or walrus interaction
plan on file with the Service and onsite, and polar bear awareness training will be required of certain
personnel. Interaction plans must include:
(A) The type of activity and where and when the activity will occur, i.e., a plan of operation;
(B) A food and waste management plan;
(C) Personnel training materials and procedures;
(D) Site at-risk locations and situations;
(E) Walrus and bear observation and reporting procedures; and
(F) Bear and walrus avoidance and encounter procedures.
(iv) All applicants for a Letter of Authorization must contact affected subsistence communities to
discuss potential conflicts caused by location, timing, and methods of proposed operations and submit
to us a record of communication that documents these discussions. If appropriate, the applicant for a
Letter of Authorization must also submit to us a POC that ensures that activities will not interfere with
subsistence hunting and that adverse effects on the availability of polar bear or Pacific walruses are
minimized (see §18.114(c)(4)).
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(v) If deemed appropriate by the Service, holders of a Letter of Authorization will be required to hire
and train polar bear monitors to alert crew of the presence of polar bears and initiate adaptive mitigation
responses.
(2) Operating conditions for operational and support vessels. (i) Operational and support vessels
must be staffed with dedicated marine mammal observers to alert crew of the presence of walruses
and polar bears and initiate adaptive mitigation responses.
(ii) At all times, vessels must maintain the maximum distance possible from concentrations of
walruses or polar bears. Under no circumstances, other than an emergency, should any vessel
approach within an 805-m (0.5-mi) radius of walruses or polar bears observed on ice. Under no
circumstances, other than an emergency, should any vessel approach within 1,610 m (1 mi) of groups
of walruses observed on land or within an 805-m (0.5-mi) radius of polar bears observed on land.
(iii) Vessel operators must take every precaution to avoid harassment of concentrations of feeding
walruses when a vessel is operating near these animals. Vessels should reduce speed and maintain a
minimum 805-m (0.5-mi) operational exclusion zone around groups of 12 or more walruses
encountered in the water. Vessels may not be operated in such a way as to separate members of a
group of walruses from other members of the group. When weather conditions require, such as when
visibility drops, vessels should adjust speed accordingly to avoid the likelihood of injury to walruses.
(iv) The transit of operational and support vessels through the specified geographic region is not
authorized prior to July 1. This operating condition is intended to allow walruses the opportunity to
disperse from the confines of the spring lead system and minimize interactions with subsistence
walrus hunters. Variances to this operating condition may be issued by the Service on a case-by-case
basis, based upon a review of seasonal ice conditions and available information on walrus and polar
bear distributions in the area of interest.
(v) All vessels must avoid areas of active or anticipated subsistence hunting for walrus or polar
bear as determined through community consultations.
(vi) We may require a monitor on the site of the activity or on board drillships, drill rigs, aircraft,
icebreakers, or other support vessels or vehicles to monitor the impacts of Industry's activity on polar
bear and Pacific walruses.
(3) Operating conditions for aircraft. (i) Operators of support aircraft should, at all times, conduct
their activities at the maximum distance possible from concentrations of walruses or polar bears.
(ii) Under no circumstances, other than an emergency, should fixed wing aircraft operate at an
altitude lower than 457 m (1,500 ft) within 805 m (0.5 mi) of walrus groups observed on ice, or within
1,610 m (1 mi) of walrus groups observed on land. Under no circumstances, other than an emergency,
should rotary winged aircraft (helicopters) operate at an altitude lower than 914 m (3,000 ft) within 1,610
m (1 mi) of walrus groups observed on land. Under no circumstances, other than an emergency,
should aircraft operate at an altitude lower than 457 m (1,500 ft) within 805 m (0.5 mi) of polar bears
observed on ice or land. Helicopters may not hover or circle above such areas or within 805 m (0.5
mile) of such areas. When weather conditions do not allow a 457-m (1,500-ft) flying altitude, such as
during severe storms or when cloud cover is low, aircraft may be operated below the required altitudes
stipulated above. However, when aircraft are operated at altitudes below 457 m (1,500 ft) because of
weather conditions, the operator must avoid areas of known walrus and polar bear concentrations and
should take precautions to avoid flying directly over or within 805 m (0.5 mile) of these areas.
(iii) Plan all aircraft routes to minimize any potential conflict with active or anticipated walrus or
polar bear hunting activity as determined through community consultations.
(4) Additional mitigation measures for offshore exploration activities. (i) Offshore exploration
activities will be authorized only during the open-water season, defined as the period July 1 to
November 30. Variances to the specified open-water season may be issued by the Service on a casehttp://www.ecfr.gov/cgi-bin/text-idx?SID=6e9defe033c0cd077aa0188b67850a66&node=50:9.0.1.1.1&rgn=div5

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by-case basis, based upon a review of seasonal ice conditions and available information on walrus and
polar bear distributions in the area of interest.
(ii) To avoid significant synergistic or cumulative effects from multiple oil and gas exploration
activities on foraging or migrating walruses, operators must maintain a minimum spacing of 24 km (15
mi) between all active seismic source vessels and/or drill rigs during exploration activities. This does
not include support vessels for these operations. No more than two simultaneous seismic operations
and three offshore exploratory drilling operations will be authorized in the Chukchi Sea region at any
time.
(iii) No offshore exploration activities will be authorized within a 64-km (40-mi) radius of the
communities of Barrow, Wainwright, Point Lay, or Point Hope, unless provided for in a Serviceapproved, site-specific Plan of Cooperation as described in paragraph (a)(7) of this section.
(iv) A monitoring program acceptable to the Service will be required to estimate the number of
walruses and polar bears in a proposed project area.
(v) Hanna Shoal Walrus Use Area (HSWUA). The HSWUA is a high use area for Pacific walruses
(Figure 2). Due to the large number of walruses that could be encountered in the HSWUA from July
through September, additional mitigation measures may be applied to activities within the HSWUA on a
case-by-case basis. These mitigation measures include, but may not be limited to, seasonal
restrictions, reduced vessel traffic, or rerouting of vessels. To the maximum extent practicable, aircraft
supporting exploration activities shall avoid operating below 1,500 feet ASL over the HSWUA between
July 1 and September 30.

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View or download PDF
(5) Additional mitigation measures for offshore seismic surveys. Any offshore exploration activity
expected to include the production of pulsed underwater sounds with sound source levels ≥160 dB re 1
µPa will be required to establish and monitor acoustic exclusion and disturbance zones and implement
adaptive mitigation measures as follows:
(i) Monitor zones. Establish and monitor with trained marine mammal observers an acoustically
verified exclusion zone for walruses surrounding seismic airgun arrays where the received level will be
≥180 dB re 1 µPa; an acoustically verified exclusion zone for polar bear surrounding seismic airgun
arrays where the received level will be ≥190 dB re 1 µPa; and an acoustically verified walrus
disturbance zone ahead of and perpendicular to the seismic vessel track where the received level will
be ≥160 dB re 1 µPa.
(ii) Ramp-up procedures. For all seismic surveys, including airgun testing, use the following rampup procedures to allow marine mammals to depart the exclusion zone before seismic surveying
begins:
(A) Visually monitor the exclusion zone and adjacent waters for the absence of polar bears and
walruses for at least 30 minutes before initiating ramp-up procedures. If no polar bears or walruses are
detected, you may initiate ramp-up procedures. Do not initiate ramp-up procedures at night or when
you cannot visually monitor the exclusion zone for marine mammals.
(B) Initiate ramp-up procedures by firing a single airgun. The preferred airgun to begin with should
be the smallest airgun, in terms of energy output (dB) and volume (in3).
(C) Continue ramp-up by gradually activating additional airguns over a period of at least 20
minutes, but no longer than 40 minutes, until the desired operating level of the airgun array is obtained.
(iii) Power down/Shutdown. Immediately power down or shutdown the seismic airgun array and/or
other acoustic sources whenever any walruses are sighted approaching close to or within the area
delineated by the 180 dB re 1 µPa walrus exclusion zone, or polar bears are sighted approaching close
to or within the area delineated by the 190 dB re 1 µPa polar bear exclusion zone. If the power down
operation cannot reduce the received sound pressure level to 180 dB re 1 µPa (walrus) or 190 dB re 1
µPa (polar bear), the operator must immediately shutdown the seismic airgun array and/or other
acoustic sources.
(iv) Emergency shutdown. If observations are made or credible reports are received that one or
more walruses and/or polar bears are within the area of the seismic survey and are in an injured or
mortal state, or are indicating acute distress due to seismic noise, the seismic airgun array will be
immediately shutdown and the Service contacted. The airgun array will not be restarted until review and
approval has been given by the Service. The ramp-up procedures provided in paragraph (a)(5)(ii) of this
section must be followed when restarting.
(v) Adaptive response for walrus aggregations. Whenever an aggregation of 12 or more walruses
are detected within an acoustically verified 160 dB re 1 µPa disturbance zone ahead of or perpendicular
to the seismic vessel track, the holder of this Authorization must:
(A) Immediately power down or shutdown the seismic airgun array and/or other acoustic sources
to ensure sound pressure levels at the shortest distance to the aggregation do not exceed 160-dB re 1
µPa; and
(B) Not proceed with powering up the seismic airgun array until it can be established that there are
no walrus aggregations within the 160 dB zone based upon ship course, direction, and distance from
last sighting. If shutdown was required, the ramp-up procedures provided in paragraph (a)(5)(ii) of this
section must be followed when restarting.
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(6) Additional mitigation measures for onshore exploration activities. (i) Polar bear monitors. If
deemed appropriate by the Service, holders of a Letter of Authorization will be required to hire and train
polar bear monitors to alert crew of the presence of polar bears and initiate adaptive mitigation
responses.
(ii) Efforts to minimize disturbance around known polar bear dens. As part of potential terrestrial
activities during the winter season, holders of a Letter of Authorization must take efforts to limit
disturbance around known polar bear dens.
(A) Efforts to locate polar bear dens. Holders of a Letter of Authorization seeking to carry out
onshore exploration activities in known or suspected polar bear denning habitat during the denning
season (November to April) must make efforts to locate occupied polar bear dens within and near
proposed areas of operation, utilizing appropriate tools, such as forward looking infrared (FLIR) imagery
and/or polar bear scent trained dogs. All observed or suspected polar bear dens must be reported to
the Service prior to the initiation of exploration activities.
(B) Exclusion zone around known polar bear dens. Operators must observe a 1-mile operational
exclusion zone around all known polar bear dens during the denning season (November to April, or until
the female and cubs leave the areas). Should previously unknown occupied dens be discovered within
1 mile of activities, work in the immediate area must cease and the Service contacted for guidance.
The Service will evaluate these instances on a case-by-case basis to determine the appropriate action.
Potential actions may range from cessation or modification of work to conducting additional monitoring,
and the holder of the authorization must comply with any additional measures specified.
(7) Mitigation measures for the subsistence use of walruses and polar bears. Holders of Letters of
Authorization must conduct their activities in a manner that, to the greatest extent practicable,
minimizes adverse impacts on the availability of Pacific walruses and polar bears for subsistence
uses.
(i) Community Consultation. Prior to receipt of a Letter of Authorization, applicants must consult
with potentially affected communities and appropriate subsistence user organizations to discuss
potential conflicts with subsistence hunting of walrus and polar bear caused by the location, timing, and
methods of Industry operations and support activities (see §18.114(c)(4) for details). If community
concerns suggest that the Industry activities may have an adverse impact on the subsistence uses of
these species, the applicant must address conflict avoidance issues through a Plan of Cooperation as
described in paragraph (a)(7)(ii) of this section.
(ii) Plan of Cooperation (POC). Where prescribed, holders of Letters of Authorization will be
required to develop and implement a Service-approved POC.
(A) The POC must include:
(1) A description of the procedures by which the holder of the Letter of Authorization will work and
consult with potentially affected subsistence hunters; and
(2) A description of specific measures that have been or will be taken to avoid or minimize
interference with subsistence hunting of walruses and polar bears and to ensure continued availability
of the species for subsistence use.
(B) The Service will review the POC to ensure that any potential adverse effects on the availability
of the animals are minimized. The Service will reject POCs if they do not provide adequate safeguards
to ensure the least practicable adverse impact on the availability of walruses and polar bears for
subsistence use.
(b) Monitoring. Depending on the siting, timing, and nature of Industry activities, holders of Letters
of Authorization will be required to:
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(1) Maintain trained, Service-approved, on-site observers to carry out monitoring programs for
polar bears and walruses necessary for initiating adaptive mitigation responses.
(i) Marine Mammal Observers (MMOs) will be required on board all operational and support
vessels to alert crew of the presence of walruses and polar bears and initiate adaptive mitigation
responses identified in paragraph (a) of this section, and to carry out specified monitoring activities
identified in the marine mammal monitoring and mitigation plan (see paragraph (b)(2) of this section)
necessary to evaluate the impact of authorized activities on walruses, polar bears, and the subsistence
use of these subsistence resources. The MMOs must have completed a marine mammal observer
training course approved by the Service.
(ii) Polar bear monitors. Polar bear monitors will be required under the monitoring plan if polar
bears are known to frequent the area or known polar bear dens are present in the area. Monitors will
act as an early detection system concerning proximate bear activity to Industry facilities.
(2) Develop and implement a site-specific, Service-approved marine mammal monitoring and
mitigation plan to monitor and evaluate the effects of authorized activities on polar bears, walruses, and
the subsistence use of these resources.
(i) The marine mammal monitoring and mitigation plan must enumerate the number of walruses
and polar bears encountered during specified exploration activities, estimate the number of incidental
takes that occurred during specified exploration activities (i.e., document immediate behavioral
responses as well as longer term, when requested), and evaluate the effectiveness of prescribed
mitigation measures.
(ii) Applicants must fund an independent peer review of proposed monitoring plans and draft
reports of monitoring results after consultation with the Service. This peer review will consist of
independent reviewers who have knowledge and experience in statistics, marine mammal behavior,
and the type and extent of Industry operations. The applicant will provide the results of these peer
reviews to the Service for consideration in final approval of monitoring plans and final reports. The
Service will distribute copies of monitoring reports to appropriate resource management agencies and
co-management organizations.
(3) Cooperate with the Service and other designated Federal, State, and local agencies to monitor
the impacts of oil and gas exploration activities in the Chukchi Sea on walruses or polar bears. Where
insufficient information exists to evaluate the potential effects of Industry activities on walruses, polar
bears, and the subsistence use of these resources, holders of Letters of Authorization may be
requested to participate in monitoring and/or research efforts in order to help the Service address these
information needs and ensure the least practicable impact to these resources. These monitoring and
research efforts will employ rigorous study designs and sampling protocols in order to provide useful
information. As an example, operators could test new technologies during their activities that will be
beneficial in minimizing disturbance to animals. Information gaps and needs in the Chukchi Sea
include, but are not limited to:
(i) Distribution, abundance, movements, and habitat use patterns of walruses and polar bears in
offshore environments;
(ii) Patterns of subsistence hunting activities by the Native Villages of Kivalina, Point Hope, Point
Lay, Wainwright, and Barrow for walruses and polar bears;
(iii) Immediate and longer term (when possible) behavioral and other responses of walruses and
polar bears to seismic airguns, drilling operations, vessel traffic, and fixed wing aircraft and helicopters;
(iv) Contaminant levels in walruses, polar bears, and their prey;
(v) Cumulative effects of multiple simultaneous operations on walruses and polar bears; and
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(vi) Oil spill risk assessment for the marine and shoreline environment of walruses, polar bears,
their prey, and important habitat areas (e.g., coastal haulouts and den sites).
(c) Reporting requirements. Holders of Letters of Authorization must report the results of specified
monitoring activities to the Service's Alaska Regional Director (see 50 CFR 2.2 for address).
(1) In-season monitoring reports—(i) Activity progress reports. Operators must keep the Service
informed on the progress of authorized activities by:
(A) Notifying the Service at least 48 hours prior to the onset of activities;
(B) Providing weekly progress reports of authorized activities noting any significant changes in
operating state and or location; and
(C) Notifying the Service within 48 hours of ending activity.
(ii) Walrus observation reports. The operator must report, on a weekly basis, all observations of
walruses during any Industry operation. Information within the observation report will include, but is not
limited to:
(A) Date, time, and location of each walrus sighting;
(B) Number, sex, and age of walruses (if determinable);
(C) Observer name, company name, vessel name or aircraft number, LOA number, and contact
information;
(D) Weather, visibility, and ice conditions at the time of observation;
(E) Estimated distance from the animal or group when initially sighted, at closest approach, and
end of the encounter;
(F) Industry activity at time of sighting and throughout the encounter. If a seismic survey, record
the estimated radius of the zone of ensonification;
(G) Behavior of animals at initial sighting, any change in behavior during the observation period,
and distance from the observers associated with those behavioral changes;
(H) Detailed description of the encounter;
(I) Duration of the encounter;
(J) Duration of any behavioral response (e.g., time and distance of a flight response) and;
(K) Actions taken.
(iii) Polar bear observation reports. The operator must report, within 24 hours, all observations of
polar bears during any Industry operation. Information within the observation report will include, but is
not limited to:
(A) Date, time, and location of observation;
(B) Number, sex, and age of bears (if determinable);
(C) Observer name, company name, vessel name, LOA number, and contact information;
(D) Weather, visibility, and ice conditions at the time of observation;
(E) Estimated closest point of approach for bears from personnel and/or vessel/facilities;
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(F) Industry activity at time of sighting, and possible attractants present;
(G) Behavior of animals at initial sighting and after contact;
(H) Description of the encounter;
(I) Duration of the encounter; and
(J) Actions taken.
(iv) Notification of incident report. Reports should include all information specified under the
species observation report, as well as a full written description of the encounter and actions taken by
the operator. The operator must report to the Service within 24 hours:
(A) Any incidental lethal take or injury of a polar bear or walrus; and
(B) Observations of walruses or polar bears within prescribed mitigation monitoring zones.
(2) After-action monitoring reports. The results of monitoring efforts identified in the marine
mammal monitoring and mitigation plan must be submitted to the Service for review within 90 days of
completing the year's activities. Results must include, but are not limited to, the following information:
(i) A summary of monitoring effort including: Total hours, total distances, and distribution through
study period of each vessel and aircraft;
(ii) Analysis of factors affecting the visibility and detectability of walruses and polar bears by
specified monitoring;
(iii) Analysis of the distribution, abundance, and behavior of walrus and polar bear sightings in
relation to date, location, ice conditions, and operational state;
(iv) Estimates of take based on the number of animals encountered/kilometer of vessel and
aircraft operations by behavioral response (no response, moved away, dove, etc.), and animals
encountered per day by behavioral response for stationary drilling operations; and
(v) Raw data in electronic format (i.e., Excel spreadsheet) as specified by the Service in
consultation with Industry representatives.
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§18.119 What are the information collection requirements?
(a) The Office of Management and Budget has approved the collection of information contained in
this subpart and assigned control number 1018-0070. You must respond to this information collection
request to obtain a benefit pursuant to section 101(a)(5) of the Marine Mammal Protection Act. We will
use the information to:
(1) Evaluate the application and determine whether or not to issue specific Letters of Authorization.
(2) Monitor impacts of activities conducted under the Letters of Authorization.
(b) You should direct comments regarding the burden estimate or any other aspect of this
requirement to the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, Department
of the Interior, Mail Stop 2042-PDM, 1849 C Street NW., Washington, DC 20240.
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Subpart J—Nonlethal Taking of Marine Mammals Incidental to Oil and
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Gas Exploration, Development, and Production Activities in the Beaufort
Sea and Adjacent Northern Coast of Alaska
SOURCE: 76 FR 47049, Aug. 3, 2011, unless otherwise noted.

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§18.121 What specified activities does this subpart cover?
Regulations in this subpart apply to the nonlethal incidental, but not intentional, take of small
numbers of polar bears and Pacific walruses by you (U.S. citizens as defined in §18.27(c)) while
engaged in oil and gas exploration, development, and production activities in the Beaufort Sea and
adjacent northern coast of Alaska.
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§18.122 In what specified geographic region does this subpart apply?
This subpart applies to the specified geographic region defined by all Beaufort Sea waters east of
a north-south line through Point Barrow (71°23′29″ N, −156 °28″30 W, BGN 1944), and up to 200 miles
north of Point Barrow, including all Alaska coastal areas, State waters, and Outer Continental Shelf
waters east of that line to the Canadian border. The onshore region is the same north/south line at
Barrow, 25 miles inland and east to the Canning River. The Arctic National Wildlife Refuge is not
included in the area covered by this subpart. Figure 1 shows the area where this subpart applies.

View or download PDF
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§18.123 When is this subpart effective?
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Regulations in this subpart are effective from August 3, 2011, through August 3, 2016, for yearround oil and gas exploration, development, and production activities.
Back to Top
§18.124 How do I obtain a Letter of Authorization?
(a) You must be a U.S. citizen as defined in §18.27(c).
(b) If you are conducting an oil and gas exploration, development, or production activity in the
specified geographic region described in §18.122 that may cause the taking of polar bears or Pacific
walruses in execution of those activities and you want nonlethal incidental take authorization under this
rule, you must apply for a Letter of Authorization for each exploration activity or a Letter of Authorization
for activities in each development or production area. You must submit the application for authorization
to our Alaska Regional Director (see 50 CFR 2.2 for address) at least 90 days prior to the start of the
proposed activity.
(c) Your application for a Letter of Authorization must include the following information:
(1) A description of the activity, the dates and duration of the activity, the specific location, and the
estimated area affected by that activity, i.e., a plan of operation.
(2) A site-specific plan to monitor the effects of the activity on the behavior of polar bears and
Pacific walruses that may be present during the ongoing activities (i.e., marine mammal monitoring and
mitigation plan). Your monitoring program must document the effects to these marine mammals and
estimate the actual level and type of take. The monitoring requirements provided by the Service will
vary depending on the activity, the location, and the time of year.
(3) A site-specific polar bear and/or walrus awareness and interaction plan. A polar bear
interaction plan for each operation will outline the steps the applicant will take to limit human-bear
interactions, increase site safety, and minimize impacts to bears.
(4) A Plan of Cooperation (POC) to mitigate potential conflicts between the proposed activity and
subsistence hunting, where relevant. Applicants must consult with potentially affected subsistence
communities along the Beaufort Sea coast (Kaktovik, Nuiqsut, and Barrow) and appropriate
subsistence user organizations (the Eskimo Walrus Commission and the Alaska Nanuuq (polar bear)
Commission) to discuss the location, timing, and methods of proposed operations and support
activities and identify any potential conflicts with subsistence walrus and polar bear hunting activities in
the communities. Applications for Letters of Authorization must include documentation of all
consultations with potentially affected user groups. Documentation must include a summary of any
concerns identified by community members and hunter organizations, and the applicant's responses to
identified concerns. Some of these measures may include, but are not limited to, mitigation measures
described in §18.128.
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§18.125 What criteria does the Service use to evaluate Letter of Authorization requests?
(a) We will evaluate each request for a Letter of Authorization based on the specific activity and the
specific geographic location. We will determine whether the level of activity identified in the request
exceeds that analyzed by us in considering the number of animals likely to be taken and evaluating
whether there will be a negligible impact on the species or an adverse impact on the availability of the
species for subsistence uses. If the level of activity is greater, we will reevaluate our findings to
determine if those findings continue to be appropriate based on the greater level of activity that you
have requested. Depending on the results of the evaluation, we may grant the authorization, add further
conditions, or deny the authorization.
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(b) In accordance with §18.27(f)(5) of subpart C of this part, we will make decisions concerning
withdrawals of Letters of Authorization, either on an individual or class basis, only after notice and
opportunity for public comment.
(c) The requirement for notice and public comment in paragraph (b) of this section will not apply
should we determine that an emergency exists that poses a significant risk to the well-being of the
species or stocks of polar bears or Pacific walruses.
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§18.126 What does a Letter of Authorization allow?
(a) Your Letter of Authorization may allow the nonlethal incidental, but not intentional, take of polar
bears and Pacific walruses when you are carrying out one or more of the following activities:
(1) Conducting geological and geophysical surveys and associated activities;
(2) Drilling exploratory wells and associated activities;
(3) Developing oil fields and associated activities;
(4) Drilling production wells and performing production support operations;
(5) Conducting environmental monitoring activities associated with exploration, development, and
production activities to determine specific impacts of each activity;
(6) Conducting restoration, remediation, demobilization programs, and associated activities.
(b) Each Letter of Authorization will identify conditions or methods that are specific to the activity
and location.
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§18.127 What activities are prohibited?
(a) Intentional take and lethal incidental take of polar bears or Pacific walruses; and
(b) Any take that fails to comply with this part or with the terms and conditions of your Letter of
Authorization.
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§18.128 What are the mitigation, monitoring, and reporting requirements?
(a) Mitigation. Holders of a Letter of Authorization must use methods and conduct activities in a
manner that minimizes to the greatest extent practicable adverse impacts on walruses and polar
bears, their habitat, and on the availability of these marine mammals for subsistence uses. Dynamic
management approaches, such as temporal or spatial limitations in response to the presence of
marine mammals in a particular place or time or the occurrence of marine mammals engaged in a
particularly sensitive activity (such as feeding), must be used to avoid or minimize interactions with
polar bears, walruses, and subsistence users of these resources.
(1) All applicants. (i) We require holders of Letters of Authorization to cooperate with us and other
designated Federal, State, and local agencies to monitor the impacts of oil and gas exploration,
development, and production activities on polar bears and Pacific walruses.
(ii) Holders of Letters of Authorization must designate a qualified individual or individuals to
observe, record, and report on the effects of their activities on polar bears and Pacific walruses.
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(iii) Holders of Letters of Authorization must have an approved polar bear and/or walrus interaction
plan on file with the Service and onsite, and polar bear awareness training will also be required of
certain personnel. Interaction plans must include:
(A) The type of activity and, where and when the activity will occur, i.e., a plan of operation;
(B) A food and waste management plan;
(C) Personnel training materials and procedures;
(D) Site at-risk locations and situations;
(E) Walrus and bear observation and reporting procedures; and
(F) Bear and walrus avoidance and encounter procedures.
(iv) All applicants for a Letter of Authorization must contact affected subsistence communities to
discuss potential conflicts caused by location, timing, and methods of proposed operations and submit
to us a record of communication that documents these discussions. If appropriate, the applicant for a
Letter of Authorization must also submit to us a POC that ensures that activities will not interfere with
subsistence hunting and that adverse effects on the availability of polar bear or Pacific walruses are
minimized (see §18.124(c)(4)).
(v) If deemed appropriate by the Service, holders of a Letter of Authorization will be required to hire
and train polar bear monitors to alert crew of the presence of polar bears and initiate adaptive mitigation
responses.
(2) Onshore activities. (i) Efforts to minimize disturbance around known polar bear dens.—Holders
of a Letter of Authorization must take efforts to limit disturbance around known polar bear dens.
(ii) Efforts to locate polar bear dens.—Holders of a Letter of Authorization seeking to carry out
onshore exploration activities in known or suspected polar bear denning habitat during the denning
season (November-April) must make efforts to locate occupied polar bear dens within and near
proposed areas of operation, utilizing appropriate tools, such as, forward-looking infrared (FLIR)
imagery and/or polar bear scent-trained dogs. All observed or suspected polar bear dens must be
reported to the Service prior to the initiation of activities.
(iii) Exclusion zone around known polar bear dens.—Operators must observe a 1.6-km (1-mi)
operational exclusion zone around all known polar bear dens during the denning season (NovemberApril, or until the female and cubs leave the areas). Should previously unknown occupied dens be
discovered within 1.6 km (1 mi) of activities, work must cease and the Service contacted for guidance.
The Service will evaluate these instances on a case-by-case basis to determine the appropriate action.
Potential actions may range from cessation or modification of work to conducting additional monitoring,
and the holder of the authorization must comply with any additional measures specified.
(iv) Use of a den habitat map developed by the USGS.—A map of potential coastal polar bear
denning habitat can be found at: http://alaska.usgs.gov/science/biology/polar_bears/pubs.html. This
measure ensures that the location of potential polar bear dens is considered when conducting activities
in the coastal areas of the Beaufort Sea.
(v) Timing restrictions.—Operators must restrict the timing of their activity to limit disturbance
around dens.
(3) Operating conditions for operational and support vessels. (i) Operational and support vessels
must be staffed with dedicated marine mammal observers to alert crew of the presence of walruses
and polar bears and initiate adaptive mitigation responses.
(ii) At all times, vessels must maintain the maximum distance possible from concentrations of
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walruses or polar bears. Under no circumstances, other than an emergency, should any vessel
approach within an 805-m (0.5-mi) radius of walruses or polar bears observed on land or ice.
(iii) Vessel operators must take every precaution to avoid harassment of concentrations of feeding
walruses when a vessel is operating near these animals. Vessels should reduce speed and maintain a
minimum 805-m (0.5-mi) operational exclusion zone around feeding walrus groups. Vessels may not
be operated in such a way as to separate members of a group of walruses from other members of the
group. When weather conditions require, such as when visibility drops, vessels should adjust speed
accordingly to avoid the likelihood of injury to walruses.
(iv) All vessels shall avoid areas of active or anticipated walrus or polar bear hunting activity as
determined through community consultations.
(v) We may require the use of trained marine mammal monitors on the site of the activity or on
board drill ships, drill rigs, aircraft, icebreakers, or other support vessels or vehicles to monitor the
impacts of Industry's activity on polar bear and Pacific walruses.
(4) Operating conditions for aircraft. (i) Operators of support aircraft should, at all times, conduct
their activities at the maximum distance possible from concentrations of walruses or polar bears.
(ii) Under no circumstances, other than an emergency, should aircraft operate at an altitude lower
than 457 m (1,500 ft) within 805 m (0.5 mi) of walruses or polar bears observed on ice or land.
Helicopters may not hover or circle above such areas or within 805 m (0.5 mile) of such areas. When
weather conditions do not allow a 457-m (1,500-ft) flying altitude, such as during severe storms or
when cloud cover is low, aircraft may be operated below the 457-m (1,500-ft) altitude stipulated above.
However, when aircraft are operated at altitudes below 457 m (1,500 ft) because of weather conditions,
the operator must avoid areas of known walrus and polar bear concentrations and should take
precautions to avoid flying directly over or within 805 m (0.5 mile) of these areas.
(iii) Plan all aircraft routes to minimize any potential conflict with active or anticipated walrus or
polar bear hunting activity as determined through community consultations.
(5) Additional mitigation measures for offshore seismic surveys. Any offshore exploration activity
expected to include the production of pulsed underwater sounds with sound source levels ≥160 dB re 1
µPa will be required to establish and monitor acoustic exclusion and disturbance zones and implement
adaptive mitigation measures as follows:
(i) Monitor zones. Establish and monitor with trained marine mammal observers an acoustically
verified exclusion zone for walruses surrounding seismic airgun arrays where the received level would
be ≥180 dB re 1 µPa; an acoustically verified exclusion zone for polar bear surrounding seismic airgun
arrays where the received level would be ≥190 dB re 1 µPa; and an acoustically verified walrus
disturbance zone ahead of and perpendicular to the seismic vessel track where the received level
would be ≥160 dB re 1 µPa.
(ii) Ramp-up procedures. For all seismic surveys, including airgun testing, use the following rampup procedures to allow marine mammals to depart the exclusion zone before seismic surveying
begins:
(A) Visually monitor the exclusion zone and adjacent waters for the absence of polar bears and
walruses for at least 30 minutes before initiating ramp-up procedures. If no polar bears or walruses are
detected, you may initiate ramp-up procedures. Do not initiate ramp-up procedures at night or when
you cannot visually monitor the exclusion zone for marine mammals.
(B) Initiate ramp-up procedures by firing a single airgun. The preferred airgun to begin with should
be the smallest airgun, in terms of energy output (dB) and volume (in3).
(C) Continue ramp-up by gradually activating additional airguns over a period of at least 20
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minutes, but no longer than 40 minutes, until the desired operating level of the airgun array is obtained.
(iii) Power down/Shut down. Immediately power down or shut down the seismic airgun array and/or
other acoustic sources whenever any walruses are sighted approaching close to or within the area
delineated by the 180-dB re 1 µPa walrus exclusion zone, or polar bears are sighted approaching close
to or within the area delineated by the 190-dB re 1 µPa polar bear exclusion zone. If the power-down
operation cannot reduce the received sound pressure level to 180-dB re 1 µPa (walrus) or 190-dB re 1
µPa (polar bears), the operator must immediately shut down the seismic airgun array and/or other
acoustic sources.
(iv) Emergency shut down. If observations are made or credible reports are received that one or
more walruses and/or polar bears are within the area of the seismic survey and are in an injured or
mortal state, or are indicating acute distress due to seismic noise, the seismic airgun array will be
immediately shut down and the Service contacted. The airgun array will not be restarted until review
and approval has been given by the Service. The ramp-up procedures provided in paragraph (a)(5)(ii)
of this section must be followed when restarting.
(v) Adaptive response for walrus aggregations. Whenever an aggregation of 12 or more walruses
are detected within an acoustically verified 160-dB re 1 µPa disturbance zone ahead of or
perpendicular to the seismic vessel track, the holder of this Authorization must:
(A) Immediately power down or shutdown the seismic airgun array and/or other acoustic sources
to ensure sound pressure levels at the shortest distance to the aggregation do not exceed 160-dB re 1
µPa; and
(B) Not proceed with powering up the seismic airgun array until it can be established that there are
no walrus aggregations within the 160-dB zone based upon ship course, direction, and distance from
last sighting. If shutdown was required, the ramp-up procedures provided in paragraph (a)(5)(ii) of this
section must be followed when restarting.
(6) Mitigation measures for the subsistence use of walruses and polar bears. Holders of Letters of
Authorization must conduct their activities in a manner that, to the greatest extent practicable,
minimizes adverse impacts on the availability of Pacific walruses and polar bears for subsistence
uses.
(i) Community Consultation. Prior to receipt of a Letter of Authorization, applicants must consult
with potentially affected communities and appropriate subsistence user organizations to discuss
potential conflicts with subsistence walrus and polar bear hunting caused by the location, timing, and
methods of proposed operations and support activities (see §18.124(c)(4) for details). If community
concerns suggest that the proposed activities may have an adverse impact on the subsistence uses of
these species, the applicant must address conflict avoidance issues through a POC as described
below.
(ii) Plan of Cooperation (POC). Where prescribed, holders of Letters of Authorization will be
required to develop and implement a Service-approved POC. The POC must include:
(A) A description of the procedures by which the holder of the Letter of Authorization will work and
consult with potentially affected subsistence hunters; and
(B) A description of specific measures that have been or will be taken to avoid or minimize
interference with subsistence hunting of walruses and polar bears and to ensure continued availability
of the species for subsistence use.
(C) The Service will review the POC to ensure that any potential adverse effects on the availability
of the animals are minimized. The Service will reject POCs if they do not provide adequate safeguards
to ensure the least practicable adverse impact on the availability of walruses and polar bears for
subsistence use.
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(b) Monitoring. Depending on the location, timing, and nature of proposed activities, holders of
Letters of Authorization will be required to:
(1) Maintain trained, Service-approved, onsite observers to carry out monitoring programs for polar
bears and walruses necessary for initiating adaptive mitigation responses.
(i) For offshore activities, Marine Mammal Observers (MMOs) will be required on board all
operational and support vessels to alert crew of the presence of walruses and polar bears and initiate
adaptive mitigation responses identified in paragraph (a) of this section, and to carry out specified
monitoring activities identified in the marine mammal monitoring and mitigation plan (see paragraph (b)
(2) of this section) necessary to evaluate the impact of authorized activities on walruses, polar bears,
and the subsistence use of these subsistence resources. The MMOs must have completed a marine
mammal observer training course approved by the Service.
(ii) Polar bear monitors—Polar bear monitors will be required under the monitoring plan if polar
bears are known to frequent the area or known polar bear dens are present in the area. Monitors will
act as an early detection system in regard to proximate bear activity to Industry facilities.
(2) Develop and implement a site-specific, Service-approved, marine mammal monitoring and
mitigation plan to monitor and evaluate the effects of authorized activities on polar bears, walruses, and
the subsistence use of these resources. The marine mammal monitoring and mitigation plan must
enumerate the number of walruses and polar bears encountered during specified activities, estimate
the number of incidental takes that occurred during specified exploration activities, and evaluate the
effectiveness of prescribed mitigation measures.
(3) Cooperate with the Service and other designated Federal, State, and local agencies to monitor
the impacts of oil and gas activities in the Beaufort Sea on walruses or polar bears. Where insufficient
information exists to evaluate the potential effects of proposed activities on walruses, polar bears, and
the subsistence use of these resources, holders of Letters of Authorization may be required to
participate in joint monitoring and/or research efforts to address these information needs and insure the
least practicable impact to these resources. Information needs in the Beaufort Sea include, but are not
limited to:
(i) Distribution, abundance, and habitat use patterns of polar bears, and to a lesser extent
walruses in offshore environments; and
(ii) Cumulative effects of multiple simultaneous operations on polar bears and to a lesser extent
walruses.
(c) Reporting requirements. Holders of Letters of Authorization must report the results of specified
monitoring activities to the Service's Alaska Regional director (see 50 CFR 2.2 for address).
(1) For exploratory and development activities, holders of a Letter of Authorization must submit a
report to our Alaska Regional Director (Attn: Marine Mammals Management Office) within 90 days after
completion of activities. For production activities, holders of a Letter of Authorization must submit a
report to our Alaska Regional Director (Attn: Marine Mammals Management Office) by January 15 for
the preceding year's activities. Reports must include, at a minimum, the following information:
(i) Dates and times of activity;
(ii) Dates and locations of polar bear or Pacific walrus activity as related to the monitoring activity;
and
(iii) Results of the monitoring activities required under paragraph (c)(1)(iv) of this section, including
an estimated level of take.
(iv) Monitoring requirements include, but are not limited to:
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(A) For all activities, all sightings of polar bears must be recorded. Information within the sighting
report will include, but is not limited to:
(1) Date, time, and location of observation;
(2) Number of bears: sex and age;
(3) Observer name and contact information;
(4) Weather, visibility, and ice conditions at the time of observation;
(5) Estimated closest point of approach for bears from personnel and facilities;
(6) Industry activity at time of sighting, possible attractants present;
(7) Bear behavior;
(8) Description of the encounter;
(9) Duration of the encounter; and
(10) Actions taken.
(B) [Reserved]
(v) Activities within the coast of the geographic region may incorporate daily polar bear watch logs.
(2) In-season monitoring reports for offshore exploration activities—(i) Activity progress reports.
Operators must keep the Service informed on the progress of authorized activities by:
(A) Notifying the Service at least 48 hours prior to the onset of activities;
(B) Providing weekly progress reports of authorized activities noting any significant changes in
operating state and or location; and
(C) Notifying the Service within 48 hours of ending activity.
(ii) Walrus observation reports. The operator must report, on a weekly basis, all observations of
walruses during any Industry operation. Information within the observation report will include, but is not
limited to:
(A) Date, time, and location of each walrus sighting;
(B) Number of walruses: sex and age;
(C) Observer name and contact information;
(D) Weather, visibility, and ice conditions at the time of observation;
(E) Estimated range at closest approach;
(F) Industry activity at time of sighting;
(G) Behavior of animals sighted;
(H) Description of the encounter;
(I) Duration of the encounter; and
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(J) Actions taken.
(iii) Polar bear observation reports. The operator must report, within 24 hours, all observations of
polar bears during any Industry operation. Information within the observation report will include, but is
not limited to:
(A) Date, time, and location of observation;
(B) Number of bears: sex and age;
(C) Observer name and contact information;
(D) Weather, visibility, and ice conditions at the time of observation;
(E) Estimated closest point of approach for bears from personnel and facilities;
(F) Industry activity at time of sighting, possible attractants present;
(G) Bear behavior;
(H) Description of the encounter;
(I) Duration of the encounter; and
(J) Actions taken.
(iv) Notification of incident report. Reports should include all information specified under the
species observation report, as well as a full written description of the encounter and actions taken by
the operator. The operator must report:
(A) Any incidental lethal take or injury of a polar bear or walrus immediately; and
(B) Observations of walruses or polar bears within prescribed mitigation-monitoring zones to the
Service within 24 hours.
(3) After-action monitoring reports. The results of monitoring efforts identified in the marine
mammal monitoring and mitigation plan must be submitted to the Service for review within 90 days of
completing the year's activities. Results must include, but are not limited to, the following information:
(i) A summary of monitoring effort including: total hours, total distances, and distribution through
study period;
(ii) Analysis of factors affecting the visibility and detectability of polar bears and walruses by
specified monitoring;
(iii) Analysis of the distribution, abundance, and behavior of polar bear and walrus sightings in
relation to date, location, ice conditions and operational state; and
(iv) Estimates of take based on density estimates derived from monitoring and survey efforts.
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§18.129 What are the information collection requirements?
(a) We may not conduct or sponsor and a person is not required to respond to a collection of
information unless it displays a currently valid OMB control number. The Office of Management and
Budget has approved the collection of information contained in this subpart and assigned control
number 1018-0070. You must respond to this information collection request to obtain a benefit pursuant
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to section 101(a)(5) of the Marine Mammal Protection Act. We will use the information to:
(1) Evaluate the application and determine whether or not to issue specific Letters of Authorization;
and
(2) Monitor impacts of activities conducted under the Letters of Authorization.
(b) You should direct comments regarding the burden estimate or any other aspect of this
requirement to the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, Department
of the Interior, Mail Stop 2042-PDM, 1849 C Street, NW., Washington, DC 20240.
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